<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark one)
[X] Quarterly report pursuant to section 13 or 15(d) of the Securities Exchange
Act of 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999
or
[ ] Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ___________ to ____________
Commission file number: 0-20784
TRIDENT MICROSYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0156584
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
2450 Walsh Ave., Santa Clara, California 95051-1303
(Address of principal executive offices) (Zip code)
(408) 496-1085
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
The number of shares of the registrant's $0.001 par value Common Stock
outstanding at March 31, 1999 was 12,997,203.
This document (including exhibits) contains 17 pages.
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TRIDENT MICROSYSTEMS, INC.
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PART I: FINANCIAL INFORMATION
Item 1: Unaudited Financial Information
Condensed Consolidated Balance Sheet - March 31, 1999 and
June 30, 1998 (Unaudited) 3
Condensed Consolidated Statement of Operations for the Three Months
and Nine Months Ended March 31, 1999 and 1998 (Unaudited) 4
Condensed Consolidated Statement of Cash Flows for the Nine Months
Ended March 31, 1999 and 1998 (Unaudited) 5
Notes to the Condensed Consolidated Financial Statements (Unaudited) 6
Item 2: Management's Discussion and Analysis of Financial Condition
and Results of Operations 8
Item 3: Quantitative and Qualitative Disclosures About Market Risk Not Applicable
PART II: OTHER INFORMATION
Item 1: Legal Proceedings 15
Item 2: Changes in Securities Not Applicable
Item 3: Defaults upon Senior Securities Not Applicable
Item 4: Submission of Matters to Vote by Security Holders Not Applicable
Item 5: Other Information Not Applicable
Item 6: Exhibits and Reports on Form 8-K 16
Signatures 17
</TABLE>
<PAGE> 3
TRIDENT MICROSYSTEMS, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
(In Thousands, Unaudited)
ASSETS
<TABLE>
<CAPTION>
MARCH 31, JUNE 30,
1999 1998
--------- ---------
<S> <C> <C>
Current assets:
Cash, cash equivalents $ 29,121 $ 22,916
Short-term investments 6,139 13,970
Accounts receivable, net 12,057 8,183
Inventories 3,837 10,146
Deferred income taxes 2,266 2,266
Prepaid expenses and other assets 1,386 1,236
--------- ---------
Total current assets 54,806 58,717
Property and equipment, net 6,431 7,766
Investment in joint venture 49,289 49,289
Other assets 2,728 2,655
--------- ---------
Total assets $ 113,254 $ 118,427
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 5,896 $ 3,359
Accrued expenses and other liabilities 5,922 5,805
Current portion of obligation under capital lease 381 380
Income taxes payable 1,729 1,292
--------- ---------
Total current liabilities 13,928 10,836
Deferred income taxes 2,350 2,350
Obligations under capital lease 74 350
--------- ---------
Total liabilities 16,352 13,536
--------- ---------
Stockholders' equity:
Common stock and additional paid-in capital 45,918 45,352
Retained earnings 54,471 62,724
Treasury stock, at cost, 436 and 374 shares (3,487) (3,185)
--------- ---------
Total stockholders' equity 96,902 104,891
--------- ---------
Total liabilities and stockholders equity $ 113,254 $ 118,427
========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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TRIDENT MICROSYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(In Thousands, Except Per Share Data, Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
----------------------- -----------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 23,253 $ 28,249 $ 67,781 $ 93,727
Cost of sales 16,126 18,518 45,640 60,216
-------- -------- -------- --------
Gross margin 7,127 9,731 22,141 33,511
Research and development expenses 7,244 7,175 20,074 20,440
Sales, general and administrative expenses 4,142 4,414 11,872 15,015
-------- -------- -------- --------
Income from operations (4,259) (1,858) (9,805) (1,944)
Interest income, net 472 576 1,552 2,223
-------- -------- -------- --------
Income before income taxes (3,787) (1,282) (8,253) 279
Provision for income taxes - (359) -- 78
-------- -------- -------- --------
Net income (loss) $ (3,787) $ (923) $ (8,253) $ 201
======== ======== ======== ========
Basic earnings (loss) per share $ (0.29) $ (0.07) $ (0.64) $ 0.02
======== ======== ======== ========
Shares used in computing
per share amounts 12,998 13,090 12,961 13,020
======== ======== ======== ========
Diluted earnings (loss) per share $ (0.29) $ (0.07) $ (0.64) $ 0.01
======== ======== ======== ========
Shares used in computing diluted
per share amounts 12,998 13,090 12,961 14,661
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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TRIDENT MICROSYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(In Thousands, Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
MARCH 31,
-----------------------
1999 1998
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ (8,253) $ 201
Adjustments to reconcile net income to cash provided
by operating activities:
Depreciation and amortization 3,119 2,830
Provision for doubtful accounts and sales returns 126 71
Changes in assets and liabilities:
Accounts receivable (4,000) 10,012
Inventories 6,309 (11,448)
Prepaid expenses and other current assets (150) (117)
Other assets (73) (2,908)
Accounts payable 2,537 (7,197)
Accrued expenses and other liabilities 117 (1,116)
Income tax payable 437 1,384
-------- --------
Net cash provided by (used in) operating activities 169 (8,288)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Sale (purchase) of short-term investments, net 7,831 23,658
Purchase of property and equipment (1,784) (3,334)
Investment in joint venture - (9,658)
-------- --------
Net cash provided by investing activities 6,047 10,666
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock 566 1,913
Repayment of capital leases (275) (177)
Purchase of treasury stock (302) -
-------- --------
Net cash provided by (used in) financing activities (11) 1,736
-------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS 6,205 4,114
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 22,916 29,745
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 29,121 $ 33,859
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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<PAGE> 6
TRIDENT MICROSYSTEMS, INC.
NOTES TO THE UNAUDITED CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
NOTE 1 BASIS OF PRESENTATION
In the opinion of Trident Microsystems, Inc. (the "Company"), the
condensed consolidated financial statements reflect all adjustments, consisting
only of normal recurring adjustments, necessary for a fair presentation of the
financial position, operating results and cash flows for those periods
presented. The condensed consolidated financial statements have been prepared
pursuant to the rules and regulations of the Securities and Exchange Commission
and are not audited. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules and
regulations. These condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and notes thereto
for the year ended June 30, 1998 included in the Company's annual report on Form
10-K filed with the Securities and Exchange Commission.
The results of operations for the interim periods presented are not
necessarily indicative of the results that may be expected for any other period
or for the entire fiscal year which ends June 30, 1999.
NOTE 2 REVENUE RECOGNITION
Revenue from product sales is recognized upon shipment. Provision is
made for expected sales returns and allowances when revenue is recognized. The
Company has limited control over the extent to which products sold to
distributors are sold through to end users. Accordingly, a portion of the
Company's sales may from time to time result in increased inventory at its
distributors. The Company provides reserves for returns and allowances for
distributor inventories. These reserves are based on the Company's estimates of
inventory held by its distributors and the expected sell through of its products
by its distributors. Actual results could differ from these estimates.
NOTE 3 INVENTORIES
Inventories consisted of the following (in thousands):
<TABLE>
<CAPTION>
MARCH 31, 1999 JUNE 30, 1998
-------------- -------------
<S> <C> <C>
Work in process $ 522 $ 2,615
Finished goods 3,315 7,531
------- -------
$ 3,837 $10,146
======= =======
</TABLE>
NOTE 4 EARNINGS PER SHARE
Basic Earnings Per Share (EPS) is computed by dividing net income
available to common stockholders (numerator) by the weighted average number of
common shares outstanding (denominator) during the period and excludes the
dilutive effect of stock options and other potential common shares. Diluted
Earnings Per Share (EPS) gives effect to all dilutive potential common shares
outstanding during a
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period. In computing Diluted EPS, the average stock price for the period is used
in determining the number of shares assumed to be purchased from exercise of
stock options.
Following is a reconciliation of the numerators and denominators of the
Basic and Diluted EPS computations for the periods presented below.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
------------------------------ ------------------------------
(in thousands, except per share data) 1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
BASIC NET INCOME (LOSS) PER SHARE
Net income (loss) available to Common
Shareholders $ (3,787) $ (923) $ (8,253) $ 201
========== ========== ========== ==========
Weighted average common shares 12,998 13,090 12,961 13,020
========== ========== ========== ==========
Basic net income (loss) per share $ (0.29) $ (0.07) $ (0.64) $ 0.02
========== ========== ========== ==========
DILUTED NET INCOME (LOSS) PER SHARE
Net income (loss) available to Common
Shareholders $ (3,787) $ (923) $ (8,253) $ 201
========== ========== ========== ==========
Weighted average common shares 12,998 13,090 12,961 13,020
Dilutive common stock equivalents - - - 1,641
---------- ---------- ---------- ----------
Weighted average common shares
and equivalents 12,998 13,090 12,961 14,661
========== ========== ========== ==========
Diluted net income (loss) per share $ (0.29) $ (0.07) $ (0.64) $ 0.01
========== ========== ========== ==========
</TABLE>
Options to purchase 4,633,997 shares of common stock were outstanding at
the end of March 31, 1999 but were not included in the computations of diluted
EPS for the three and nine month periods ended March 31, 1999 because the
Company incurred a loss. Options to purchase 4,167,841 shares of common stock
were outstanding during the three month period ended March 31, 1998 but were not
included in the computations of diluted EPS because the Company incurred a loss.
Options to purchase 61,301 shares of common stock were outstanding during the
nine month period ended March 31, 1998 but were not included in the computations
of diluted EPS because the options' price was greater than the average market
price of the common shares.
NOTE 5 LITIGATION
On December 14, 1998, NeoMagic Corporation (Nasdaq: NMGC), filed suit in
the United States District Court for the District of Delaware against Trident
Microsystems, Inc. (the "Company"). The suit alleges that the Company's embedded
DRAM graphics accelerators infringe certain patents held by NeoMagic
Corporation. The Company intends to defend the litigation vigorously. On January
25, 1999 the Company filed a counter claim in the United States District Court
for the District of Delaware against NeoMagic, Inc. The counter claim alleges an
attempted monopolization in violation of the antitrust laws, arising from
Neomagic's patent infringement filing against the Company. However, due to the
nature of the litigation, the Company cannot estimate with certainty what would
be the ultimate outcome of the litigation.
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<PAGE> 8
ITEM 2:
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Unaudited)
RESULTS OF OPERATIONS
The following table sets forth the results of operations expressed as
percentages of net sales for the three and nine months ended March 31, 1999 and
1998:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
------------------- -------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales 100% 100% 100% 100%
Cost of sales 69 66 67 64
---- ---- ---- ----
Gross margin 31 34 33 36
Research and development 31 25 30 22
Selling, general and administrative 18 16 18 16
---- ---- ---- ----
Income (loss) from operations (18) (7) (15) (2)
Interest income, net 2 2 2 2
---- ---- ---- ----
Income (loss) before income taxes (16) (5) (13) -
Provision for income taxes - (1) - -
---- ---- ---- ----
Net income (loss) (16)% (4)% (13)% -%
==== ==== ==== ====
</TABLE>
Net Sales
Net sales for the three months ended March 31, 1999 were $23.3 million
or 18% less than the $28.2 million reported in the three months ended March 31,
1998, and increased $2.6 million, or 13% from the $20.7 million reported in the
three months ended December 31, 1998. Net sales for the nine months ended March
31, 1999 were $67.8 million or 28% less than the $93.7 million reported in the
nine months ended March 31, 1998. The sales increase from the three months ended
December 31, 1998 was predominantly due to a increase in unit shipments in 3D
portable products. For the three and nine months ended March 31, 1999, sales
have declined compared to the prior year as product revenue from the newly
introduced 3D products in both the portable and desktop area were not enough to
offset declines in the older, less in demand 2D products and general declines in
average selling prices in desktop products. Portable and desktop products
accounted for 65% and 31% respectively, of the Company's sales for the three
months ended March 31, 1999, and 30% and 67%, respectively, for the three months
ended March 31, 1998. In the nine month period ended March 31, 1999, portable
and desktop products accounted for 54% and 42% of total sales, respectively. In
the nine month period ended March 31, 1998, portable and desktop products
accounted for 40% and 57% of total sales, respectively.
Sales to North American and European customers represented 36% of net
sales in the three months ended March 31, 1999, an increase from approximately
15% in the three months ended March 31, 1998. Sales to North American and
European customers represented 25% of net sales in the nine months ended March
31, 1999, an increase from approximately 16% in the nine months ended March 31,
1998. The
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<PAGE> 9
increase in the percentage of net sales for North American and European
customers for both the three months and nine months ended March 31, 1999, is
primarily due to a greater decrease in Asian sales relative to North American
and European sales. The Company expects Asian customers will continue to account
for a significant portion of the Company's sales. Sales to Asian customers,
primarily in Hong Kong, Taiwan, Korea and Japan, accounted for approximately 64%
of net sales in the three months ended March 31, 1999, down from approximately
85% in the three months ended March 31, 1998. Sales to Asian customers,
primarily in Hong Kong, Taiwan, Korea and Japan, accounted for approximately 75%
of net sales in the nine months ended March 31, 1999, down from approximately
84% in the nine months ended March 31, 1998. In the three months ended March 31,
1999, sales to three customers accounted for 19%, 17%, and 10% of net sales
respectively. In the three months ended March 31, 1998, sales to three customers
accounted for 22%, 12%, and 12% of net sales, respectively. In the nine months
ended March 31, 1999 sales to two customers accounted for 16%, and 10% of net
sales, respectively. In the nine months ended March 31, 1998, sales to two
customers accounted for 17% and 10% of net sales, respectively. The Company
derives a portion of its revenues from sales to distributors. Sales to
distributors represented 17% and 9% of revenues during the three months ended
March 31, 1999 and 1998, respectively, and 16% of revenues during the nine
months ended March 31, 1999, up from 11% in the nine months ended March 31,
1998. During the first half of fiscal year 1998 the Company experienced higher
than usual returns resulting from certain distributors adjusting their inventory
mix and levels. Sales returns from distributors have historically not been
material. Substantially all of the sales transactions were denominated in U.S.
dollars during both periods.
The Company plans from time to time to introduce new and higher
performance desktop and portable graphics controller and multimedia products
which it will seek to sell to existing customers as well as new customers in
Asia, North America and Europe. The Company's future success depends upon the
regular and timely introduction of these and other new products and upon those
products meeting customer requirements. There can be no assurance that the
Company will be able to successfully complete the development of these products
or to commence shipments of these products in a timely manner, or that product
specifications will not be changed during the development period. In addition,
even if regularly and timely developed and shipped, there can be no assurance
that the products described above will be well accepted in the market place.
Gross Margin
Gross margin decreased to $7.1 million for the three months ended March
31, 1999, down from $9.7 million in the three months ended March 31, 1998. The
gross margin as a percentage of net sales for the three months period ended
March 31, 1999, decreased to 31% of net sales as compared to 34% for the three
months ended March 31, 1998. Gross margin for the three months ended March 31,
1999 was adversely affected by lower sales of desktop products and 2D portable
products, despite increases in sales of 3D portable products. Gross margin
decreased to $22.1 million for the nine months ended March 31, 1999, down from
$33.5 million in the nine months ended March 31, 1998. The gross margin as a
percentage of net sales for the nine months period ended March 31, 1999,
decreased to 33% of net sales as compared to 36% for the nine months ended March
31, 1998. The nine month decrease was primarily a result of lower sales and
declining ASP's of desktop products and lower sales of 2D portable products.
The Company believes that prices of semiconductor products will decline
over time as availability and competition increase and advanced products are
introduced. The Company expects to see continued competitive pressure on gross
margins in the desktop and notebook business in the foreseeable future. The
Company continues to maintain a strategy based on maintaining gross margins
through the introduction of new products with higher margins, reducing
manufacturing costs accomplished through the
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<PAGE> 10
Company's custom design methodology and the migrating to the newest process
technology. As a result, the Company depends upon the success of new product
development and the timely introduction of new products, as well as upon the
achievement of its manufacturing cost reduction efforts. There can be no
assurance that the Company can successfully or timely develop and introduce new
products, that such products will gain market acceptance, or that it can
continue to successfully reduce manufacturing costs.
Research and Development
Research and development expenses for the three months ended March 31,
1999 remained flat at $7.2 million compared to the March 31, 1998 three month
period. As a percent of net sales, research and development expenses increased
to 31% for the three months ended March 31, 1999 from 25% of net sales for the
three months ended March 31, 1998. Research and development expenses for the
nine months ended March 31, 1999 decreased to $20.1 million from $20.4 million
for the March 31, 1998 nine month period. As a percent of net sales, research
and development expenses increased to 30% for the nine months ended March 31,
1999 from 22% of net sales for the nine months ended March 31, 1998. The
decrease in research and development expenses in actual dollars for the nine
months ended March 31, 1999 compared to the respective nine months ended March
31, 1998 can be attributed primarily to a reduction in workforce and a decrease
in nonrecurring engineering charges resulting from the Company's cost reduction
programs.
Selling, General and Administrative
Selling, general and administrative expenses decreased to $4.1 million
in the three months ended March 31, 1999 from $4.4 million in the three months
ended March 31, 1998. As a percent of net sales, selling, general and
administrative expenditures increased to 18% of net sales for the three months
ended March 31, 1999 from 16% of net sales in the three months ended March 31,
1998. In the nine months ended March 31, 1999, selling, general and
administrative expenditures decreased to $11.8 million, from the March 31, 1998
nine month period of $15.0 million. Selling, general and administrative
expenditures increased to 17% of net sales for the nine months ended March 31,
1999 from 16% of net sales in the nine months ended March 31, 1998. The decrease
in selling, general and administrative expenditures in actual dollars is
attributed primarily to the Company's cost reduction programs and a decrease in
representative commissions due to lower sales for both the three and nine month
periods ending March 31, 1999. The Company intends to continue to monitor and
control its selling, general and administrative expenses.
Interest Income, Net
The amount of interest income earned by the Company varies directly with
the amount of its cash, cash equivalents and short-term investments and the
prevailing interest rates. Interest income decreased to $472,000 in the three
months ended March 31, 1999 from $576,000 in the same prior year period. In the
nine month period ended March 31, 1999 interest income decreased to $1,552,000
from $2,223,000 in the nine month period ended March 31, 1998. The decreases in
both the three month and nine month periods ending March 31, 1999 are primarily
the result of lower average cash levels invested by the Company.
Provision for Income Taxes
Due to the current loss situation of the Company, no provision for U.S.
taxes was taken for both the three and nine month periods ending March 31, 1999.
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<PAGE> 11
Year 2000 Conversion Project
The Company has a Year 2000 project designed to identify and assess the
risks associated with its information systems, products, operations and
infrastructure, and suppliers that are not Year 2000 compliant and to develop,
implement, and test remediation and contingency plans to mitigate these risks.
The project is composed of four phases: (1) identification of risks, (2)
assessment of risks, (3) development of remediation and contingency plans, and
(4) implementation and testing.
Information systems. In 1997, the Company undertook a project to upgrade
all its information systems to Year 2000 compliance. The Company has upgraded
its U.S. information systems to Year 2000 compliance in January, 1999. The
Company expects to have its Asian facilities information systems upgraded to
Year 2000 compliance by the end of May fiscal year 1999.
Products. The Company has assessed the capabilities of all of its
products sold to customers. Based on the assessments made to date, none of the
Company's products are affected by Year 2000 issues.
Operations and Infrastructure. The U.S. facility has upgraded its office
equipment and other items used in its operations to year 2000 compliance in
January, 1999. The Company expects to have its Asian facilities office equipment
and other items used in its operations upgraded to Year 2000 compliance by the
end of May fiscal year 1999.
Suppliers. The Company has evaluated its supplier base to determine
whether Year 2000 issues affecting suppliers will adversely impact the Company's
operations. The Company has contacted all of its suppliers to assess their Year
2000 readiness and will continue to monitor the progress of its key suppliers.
The Company has assessed its key suppliers for Year 2000 readiness and has not
found any Year 2000 issues from suppliers which would adversely impact the
Company's operations.
General and Risk Factors. The Company believes that its greatest
potential risks are associated with its information systems and systems embedded
in its operations and infrastructure. With the upgrading of its U.S. information
systems to Year 2000 compliance in January, 1999, the Company believes it has
reduced the potential risk from Year 2000 issues affecting its information
systems and systems embedded in its operations and infrastructure. The Company
is in the final stages of implementation for all its operations and
infrastructure, but cannot predict whether significant problems will be
identified. The Company has not yet determined the extent of contingency
planning that may be required. Based on the status of the assessment made and
remediation plans developed to date, the Company is not in a position to state
the total cost of remediation of all Year 2000 issues. Costs identified to date
are expected to be not less than $100,000.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 1999, the Company's principal sources of liquidity
included cash and cash equivalents of $29.1 million and short-term investments
of $6.1 million. The decrease in short-term investments from $14.0 million at
June 30, 1998 was due to transfers to cash and cash equivalents from short-term
investments during the nine months ended March 31, 1999.
In the nine months ended March 31, 1999, $0.2 million of cash was
provided by operations, compared to the nine months ended March 31, 1998 in
which $8.3 million of cash was used by
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<PAGE> 12
operations. The change was mainly the result of a decrease in inventories, an
increase in accounts payable and income taxes payable, offset in part by
unprofitable operations and an increase in accounts receivable for the nine
months ended March 31, 1999. The decrease in inventories reflected the Company's
effort to reduce inventory levels according to adjusted sales expectations.
Capital expenditures were $1.8 million for the nine months ended March 31, 1999
compared to $3.3 million for the nine months ended March 31, 1998.
In August 1995, the Company entered into a joint venture agreement with
United Microelectronics Corporation ("UMC") and other venture partners to
establish a foundry, United Integrated Circuits Corporation ("UICC"). Under the
agreement, the Company invested $49.3 million in the joint venture and the
foundry guarantees to Trident 12.5% of the foundry's total wafer supply. On
October 3, 1997, a fire at UICC's fabrication plant in Hsinchu, Taiwan,
completely destroyed its fabrication equipment. The fabrication plant, and the
destroyed equipment, was insured. Trident was not utilizing the UICC fabrication
plant, and there are no existing Trident products on UICC's production lines.
The UICC Board of Directors are exploring available alternatives, and a firm
decision on the rebuilding of the fab plant should be reached before fiscal year
June 30, 1999. At March 31, 1999, the Company held a 9.3% equity ownership in
UICC.
The joint venture investment with UMC is intended to secure capacity so
that the Company can meet increased demand, should it occur. There are certain
risks associated with such an investment including the ability of UMC together
with its partners, to successfully rebuild the foundry and of the Company to
utilize the additional capacity. These agreements and the risks associated with
these and other foundry relationships are described under the caption
"Manufacturing" of the Form 10-K for the fiscal year ended June 30, 1998.
The agreement with UMC has utilized a significant amount of Trident's
available funds; however the Company believes its current resources are
sufficient to meet its needs for at least the next twelve months. The Company
regularly considers transactions to finance its activities, including debt and
equity offerings and new credit facilities or other financing transactions. The
Company believes its current reserves are adequate.
In April 1999, the Company's Board of Directors renewed a $20 million
stock repurchase program over the next twelve months. During the nine months
ended March 31, 1999, 61,100 shares of common stock were repurchased for $0.3
million under this Plan. During fiscal year 1998, 274,500 shares of common stock
were repurchased for $2.1 million under this Plan. The Company's cash reserve
may decline as a result of its future use, if any, of the repurchase provision.
FACTORS THAT MAY AFFECT FUTURE RESULTS
Certain statements herein are forward looking statements, including
those regarding the Company's intention to continue to introduce new products,
expected sales to Asian customers, the Company's expectations regarding pricing
pressures and gross margin from new products and the Company's plan to invest in
research and development and to control selling, general, and administrative
functions. The actual results could vary from the Company's expectations, and
are subject to a number of risks and dependent on a variety of factors,
including those set forth below.
The Company's business is influenced by a variety of factors which
include the overall market for desktop and portable PC computers, the general
economic climate, the success of the Company's customers and their resultant net
orders, seasonal customer demand, timing of new product introductions,
marketplace acceptance of new product offerings, overall product mix, sales
returns from distributors, competitors' activities and the availability of
foundry and assembly capacities. The Company's future
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<PAGE> 13
operating results are also influenced by its dynamic product area and by the
amount and timing of planned expenditures to future operating results as well as
by a variety of global, political, regulatory and foreign exchange factors.
These factors will all affect the Company's results and there can be no
assurance of the Company's future operating results.
The Company supplies components to a variety of OEM customers that in
turn sell their products into the overall PC marketplace. Their success
influences the overall net orders that the Company may receive and attempt to
fill. Should there be a downturn in the overall PC business or should the
existing customers not be in a position to place orders or to accept order
fulfillment, the Company's performance would be adversely impacted and there can
be no assurance that the Company would be successful in achieving offsetting
orders. The success of the Company's marketing and sales efforts can also be
affected by changes in the global graphics marketplace. Because the Company's
customers distribute their products worldwide, such factors as shifts in market
share from Asian clone makers to other manufacturers have in the past affected
the Company's operating results. It is likely that future shifts would continue
to influence the Company's business. Since a substantial portion of the
Company's revenues has been and is expected to continue to be generated from
customers in Asia, it is likely that the Company's operating results will
fluctuate with changes in the Asian economies, particularly those of Taiwan and
Hong Kong. During the six months ended December 31, 1997, the Company
experienced higher than usual returns resulting from certain distributors
adjusting their inventory mix and levels. These product exchanges are the result
of the industry transition from 2D to 3D, and the Company cannot predict that
these exchanges will not re-occur in the future. However, in the nine months
ended March 31, 1999 exchanges were not significant. Past performance has
indicated that seasonal performance variations should be expected with the
historic slowest PC sales occurring during the summer. These factors influence
when the Company's customers place their orders and when delivery is required.
Because the Company currently operates in the increasingly competitive
graphics controller product area, timely introductions of new products are
required. A fundamental business risk is whether or not the Company can continue
to develop products that will be accepted by a fast-changing marketplace. In
order to be able to timely introduce new products a number of obstacles have to
be overcome. The Company attempts to determine which products have a high
likelihood of marketplace acceptance and attempts to create functional and
manufacturable designs for those products. However, the Company cannot assure
that product development, the timing of the product introductions, the
marketplace acceptance of current products under development, and the hiring of
the personnel required to support new product introductions and new customers,
including leading PC systems manufacturers, will be successful. Should there be
a shortfall in the Company's business performance from its expected results, the
Company's financial results would be adversely impacted by the amount and timing
of planned expenditures. Additional influences on the Company's performance will
be the actions of existing or future competitors, the development of new
technologies, the incorporation of graphics functionality into other PC system
components and possible claims by third parties of infringement of patent or
similar intellectual property rights.
The Company currently relies exclusively upon independent foundries to
manufacture its products either in finished or in wafer form, and orders
production either on contract or spot basis. The Company's ability to supply
product to its customers is thus dependent upon its continuing relationships
with those foundries and in turn upon their uninterrupted ability to supply the
Company's product. In response to a worldwide shortage of foundry capacity
shortage, the Company entered into a number of contracts providing for
additional capacity. Certain of such contracts require substantial advance
payments. There can be no assurance that the Company will obtain sufficient
foundry capacity to meet customer demands in the future, particularly if that
demand should increase, or that the additional capacity from current foundries
-13-
<PAGE> 14
and new foundry sources will be available and will satisfy the Company's
quality, delivery schedule, and/or price requirements.
The Company's products are assembled and tested by a variety of
independent subcontractors. The Company's reliance on independent assembly and
testing houses to provide these services involves a number of risks, including
the absence of guaranteed capacity and reduced control over delivery schedules,
quality assurance and costs.
Constraints or delays in the supply of the Company's products, whether
due to the factors above or to other unanticipated factors, could have adverse
effects on the Company's results. Such adverse effects could include the Company
electing to purchase products from higher cost sources and which could result in
lower orders, or inability to fulfill orders, resulting in the loss of orders.
The market price of the Company's common stock has been, and may
continue to be, extremely volatile. Factors such as new product announcements by
the Company or its competitors, quarterly fluctuations in the Company's
operating results, the performance of leading PC manufacturers and general
conditions in the high technology and graphics controller markets may have a
significant impact on the market price of the Company's common stock.
Expansion of sales and distribution of products to numerous large system
manufacturing customers, should it occur, would require expansion of the
Company's research and development, production and marketing and sales
capabilities. Sales growth, should it occur, will require additional foundry
capacity and the Company has contracted to expand available foundry capacity.
Future results will in part depend upon and could be significantly impacted by
the Company's ability to manage its resources to support future activities and
upon its ability to finance further expanded foundry capitalization and
production costs.
The Company's principal research and development activity is conducted
in Silicon Valley where the competition for technical talent is intense. The
Company constantly reviews measures to attract and retain new and existing
employees. As a result of the foregoing, the Company established a research and
development facility in Shanghai, People's Republic of China in the quarter
ended March 31, 1998. This facility currently has fifty employees as of March
31, 1999. The Company is considering other organizational changes to improve its
research and development and product execution efforts. There can be no
assurance that these measures will be successful.
The Company's future operating results also may be affected by various
factors which are beyond the Company's control. These include adverse changes in
general economic conditions, political instability, governmental regulation or
intervention affecting the personal computer industry, government regulation
resulting from U.S. foreign and trade policy, fluctuations in foreign exchange
rates particularly with regard to the relationship of the U.S. dollar and Asian
currencies. The Company is unable to predict future economic, political, and
regulatory and foreign exchange changes and cannot determine their impact on
future performance.
TEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
-14-
<PAGE> 15
PART II: OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
On December 14, 1998, NeoMagic Corporation (Nasdaq: NMGC), filed suit in
the United States District Court for the District of Delaware against Trident
Microsystems, Inc. (the "Company"). The suit alleges that the Company's embedded
DRAM graphics accelerators infringe certain patents held by NeoMagic
Corporation. The Company intends to defend vigorously the litigation which was
filed against it, and the Company will take every step possible to protect the
interests of its customers and shareholders. On January 25, 1999 the Company
filed a counter claim in the United States District Court for the District of
Delaware against NeoMagic Corporation. The counter claim alleges an attempted
monopolization in violation of the antitrust laws, arising from Neomagic's
patent infringement filing against the Company. On March 25, 1999 NeoMagic
Corporation filed a motion for summary judgement requesting that the Company's
counter claim be dismissed. Statements regarding the possible outcome of
litigation and the Company's actions are forward looking statements and actual
outcomes could vary based upon future developments on the litigation.
ITEM 2: CHANGES IN SECURITIES
Not applicable
ITEM 3: DEFAULTS UPON SENIOR SECURITIES
Not applicable
ITEM 4: SUBMISSIONS OF MATTERS TO VOTE BY SECURITY HOLDERS
Not applicable
ITEM 5: OTHER INFORMATION
Not applicable
-15-
<PAGE> 16
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) List of Exhibits
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
3.1 Restated Certificate of Incorporation.(1)
3.2 Bylaws of Trident Delaware Corporation, a Delaware corporation.(2)
4.1 Reference is made to Exhibits 3.1 and 3.2.
4.2 Specimen Common Stock Certificate.(2)
4.3 Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, LLC, as Rights Agent (including as Exhibit A
the form of Certificates of Designation, Preferences and Rights of
the Terms of the Series A Preferred Stock, as Exhibit B the form of
Right Certificate, and as Exhibit C the Summary of Terms of Rights
Agreement).(3)
10.5(*) 1990 Stock Option Plan, together with forms of Incentive Stock Option
Agreement and Non-statutory Stock Option Agreement.(2)
10.6(*) Form of the Company's Employee Stock Purchase Plan.(2)
10.7(*) Summary description of the Company's Fiscal 1992 Bonus Plan.(2)
10.8(*) Form of the Company's Fiscal 1993 Bonus Plan.(2)
10.9(*) Summary description of the Company's 401(k) plan.(2)
10.10(*) Form of Indemnity Agreement for officers, directors and agents.(2)
10.12(*) Form of Non-statutory Stock Option Agreement between the Company and
Frank C. Lin.(4)
10.13(*) Form of 1992 Stock Option Plan amending and restating the 1990 Stock
Option Plan included as Exhibit 10.5.(2)
10.14 Sublease Agreement dated November 23, 1998 between the Company and
Applied Materials, Inc. for the Company's principal offices located
at 2450 Walsh Avenue, Santa Clara, California.(6)
10.16 Foundry Venture Agreement dated August 18, 1995 by and between the
Company and United Microelectronics Corporation.(5)(7)
27.1 Financial Data Schedule (EDGAR version only)(6)
</TABLE>
- ---------------
(1) Incorporated by reference from exhibit of the same number to the
Company's Annual Report on Form 10-K for the year ended June 30,
1993.
(2) Incorporated by reference from exhibit of the same number to the
Company's Registration Statement on Form S-1 (File No. 33-53768),
except that Exhibit 3.2 is incorporated from Exhibit 3.4.
(3) Incorporated by reference from exhibit 99.1 to the Company's Report
on Form 8-K filed August 21, 1998.
(4) Incorporated by reference from exhibit of the same number to the
Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996.
(5) Incorporated by reference from exhibit of the same number to the
Company's Annual Report on Form 10-K for the year ended June 30,
1995.
(6) Filed herewith.
(7) Confidential treatment has been requested for a portion of this
document.
(*) Management contracts or compensatory plans or arrangements covering
executive officer or directors of the Company.
(b) Reports on Form 8-K
Not Applicable
-16-
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on May 14, 1999 on its
behalf by the undersigned thereunto duly authorized.
Trident Microsystems, Inc.
(Registrant)
/s/ FRANK C. LIN
- --------------------------------------
Frank C. Lin
President, Chief Executive Officer
and Chairman of the Board
(Principal Executive Officer)
/s/ PETER JEN
- --------------------------------------
Peter Jen
Senior Vice President, Asia Operations and Chief
Accounting Officer (Principal Financial and
Accounting Officer)
-17-
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
3.1 Restated Certificate of Incorporation.(1)
3.2 Bylaws of Trident Delaware Corporation, a Delaware corporation.(2)
4.1 Reference is made to Exhibits 3.1 and 3.2.
4.2 Specimen Common Stock Certificate.(2)
4.3 Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, LLC, as Rights Agent (including as Exhibit A
the form of Certificates of Designation, Preferences and Rights of
the Terms of the Series A Preferred Stock, as Exhibit B the form of
Right Certificate, and as Exhibit C the Summary of Terms of Rights
Agreement).(3)
10.5(*) 1990 Stock Option Plan, together with forms of Incentive Stock Option
Agreement and Non-statutory Stock Option Agreement.(2)
10.6(*) Form of the Company's Employee Stock Purchase Plan.(2)
10.7(*) Summary description of the Company's Fiscal 1992 Bonus Plan.(2)
10.8(*) Form of the Company's Fiscal 1993 Bonus Plan.(2)
10.9(*) Summary description of the Company's 401(k) plan.(2)
10.10(*) Form of Indemnity Agreement for officers, directors and agents.(2)
10.12(*) Form of Non-statutory Stock Option Agreement between the Company and
Frank C. Lin.(4)
10.13(*) Form of 1992 Stock Option Plan amending and restating the 1990 Stock
Option Plan included as Exhibit 10.5.(2)
10.14 Sublease Agreement dated November 23, 1998 between the Company and
Applied Materials, Inc. for the Company's principal offices located
at 2450 Walsh Avenue, Santa Clara, California.(6)
10.16 Foundry Venture Agreement dated August 18, 1995 by and between the
Company and United Microelectronics Corporation.(5)(7)
27.1 Financial Data Schedule (EDGAR version only)(6)
</TABLE>
- ---------------
(1) Incorporated by reference from exhibit of the same number to the
Company's Annual Report on Form 10-K for the year ended June 30,
1993.
(2) Incorporated by reference from exhibit of the same number to the
Company's Registration Statement on Form S-1 (File No. 33-53768),
except that Exhibit 3.2 is incorporated from Exhibit 3.4.
(3) Incorporated by reference from exhibit 99.1 to the Company's Report
on Form 8-K filed August 21, 1998.
(4) Incorporated by reference from exhibit of the same number to the
Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996.
(5) Incorporated by reference from exhibit of the same number to the
Company's Annual Report on Form 10-K for the year ended June 30,
1995.
(6) Filed herewith.
(7) Confidential treatment has been requested for a portion of this
document.
(*) Management contracts or compensatory plans or arrangements covering
executive officer or directors of the Company.
<PAGE> 1
Exhibit 10.14
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is dated as of November 23, 1998
(the "Effective Date") by and between Applied Materials, Inc., a Delaware
corporation, ("Sublessor") and Trident Microsystems, Inc., a California
corporation ("Sublessee").
1. PROVISIONS CONSTITUTING SUBLEASE
1.1 This Sublease is and at all times shall be subject and
subordinate to the Lease dated as of May 9, 1995, between Sobrato Development
Companies #871, as landlord ("Landlord"), and Sublessor, as tenant, as amended
by that certain First Amendment to Lease dated November 26, 1997 (the
"Amendment") (together, the "Master Lease"). A copy of the Master Lease is
attached hereto as EXHIBIT A. Sublessee shall comply with all of the provisions
of the Master Lease and shall perform all the obligations on the part of the
"Tenant" under the Master Lease. Sublessee shall indemnify and hold Sublessor
harmless from and against all liability, costs, damages, claims, demands and
expenses, including reasonable attorney's fees and costs, arising out of
Sublessee's failure to comply with or to perform Sublessee's obligations
hereunder or the obligations of the "Tenant" under the Master Lease as provided
herein. In the event of the termination of Sublessor's interest as "Tenant"
under the Master Lease for any reason other than a voluntary termination of the
Master Lease by Sublessor without Sublessee's consent, then this Sublease shall
terminate concurrently therewith without any liability of Sublessor to
Sublessee.
1.2 Except for sections 1, 2, 3, 4, 5, 6, 7, 8, 10, the second
paragraph of section 17, 18(A), (B) and (E), 26, the second paragraph of section
32, 34, 37, 38, 39, 40, 42 and 46 of the Master Lease, all of the terms and
conditions contained in the Master Lease are incorporated herein as terms and
conditions of this Sublease, and along with all of the provisions of this
Sublease shall be the complete terms and conditions of this Sublease. The terms
of the Amendment shall not be incorporated into this Sublease. All references
in the Master Lease to the "Lease" shall be deemed to refer to this Sublease
and all references in the Master Lease to "Landlord" and "Tenant" shall be
deemed to refer to Sublessor and Sublessee, respectively, except that any
reference to "Landlord" in section 9, the second paragraph of section 11,
sections 12(C) and (D), sections 13, 14, 15, 16, the first paragraph of section
17, sections 18(C) and (D), the first paragraph of section 19, and sections 20,
23, 27, 29(A) for purposes of Landlord's consent only, 33, 36, and 45 of the
Master Lease shall be deemed to refer to both Landlord and Sublessor and any
reference to "Landlord" in the first and third paragraphs of section 11,
sections 12(B), 25, 28, 30, 31, the first paragraph of section 32, and section
43 of the Master Lease shall be deemed to refer to Landlord only.
2. PREMISES
2.1 Sublessor leases to Sublessee and Sublessee hires from
Sublessor the premises consisting of the real property commonly known as 2450
Walsh Avenue, Santa Clara, California, and all improvements located thereon
(the "Subleased Premises").
2.2 Sublessee accepts the Subleased Premises, and all
improvements included therein, in their present condition, "as is," without
representation or warranty by Sublessor
1
<PAGE> 2
as to the condition of the subleased premises or as to the use or occupancy
which may be made thereof. Sublessee acknowledges (a) that it has been advised
by Sublessor to satisfy itself with respect to each and every condition of the
Subleased Premises and the present and future suitability of the Subleased
Premises for Sublessee's intended use, (b) that Sublessee has made such
investigations of the Subleased Premises as it deems necessary and assumes all
responsibility therefore with respect to the occupancy of the Subleased
Premises, and (c) that neither Landlord nor Sublessor, or any of their agents,
has made any oral or written representations or warranties with respect to such
matters other than as set forth in this Sublease, if any. Sublessor shall have
no obligation whatsoever to construct or make any alterations or improvements
to the Subleased Premises. The foregoing notwithstanding, Sublessor shall
remove, at Sublessor's sole expense, the existing kitchen appliances and
associated equipment from the Subleased Premises on or before March 1, 1999.
2.3 Prior to the expiration of this Sublease, Sublessee shall
remove all of its trade fixtures, personal property and any alterations
performed by or on behalf of Sublessee from the Subleased Premises and shall
surrender the Subleased Premises to Sublessor in broom clean defined in section,
ordinary wear and tear, acts of God, casualty, condemnation and Hazardous
Materials (as defined in section 18(A) of the Master Lease) not used, stored,
released, or disposed of by Sublessee, its agents, employees or contractors
excepted, and free of all Hazardous Materials used, stored, transported,
released, or disposed of by Sublessee or its agents, employees, or contractors.
If the Subleased Premises were not so surrendered, then Sublessee shall be
liable to Sublessor for all costs incurred by Sublessor to return the Subleased
Premises to the required condition. Except to the extent that the Hazardous
Material in question was released, emitted, used, stored, manufactured,
transported or discharged by Sublessee or its agents, employees or contractors,
as between Sublessor and Sublessee, Sublessee shall not be responsible for and
hereby is released by Sublessor from any claim, remediation obligation, removal
obligation, monitoring cost, investigation obligation liability, cause of
action, penalty, attorneys' fee, cost, expense or damage owing or alleged to be
owing to any third party with respect to any Hazardous Material present on or
about the Subleased Premises or the soil, groundwater or surface water thereof
as of the Commencement Date of this Sublease, without regard to whether the
presence of the Hazardous Materials was caused by any person other than
Sublessor. Nothing contained in this paragraph shall be construed as to permit
Sublessee to use, store or transport Hazardous Materials on the Subleased
Premises. Sublessee's rights with respect to the use of Hazardous Materials on
the Subleased Premises are set forth in paragraph 14 below.
2.3.1 Sublessee shall not be required to reinstall kitchen
appliances and/or associated equipment removed by Sublessor as provided for
herein. Sublessee shall perform any other restoration of the kitchen area
required by Landlord.
3. TERM.
3.1 The term of this Sublease shall be for a period of
twenty-seven (27) months, commencing April 1, 1999, and ending June 30, 2001,
unless sooner terminated pursuant to any provision hereof. Sublessee, at its
option, may advance the Commencement Date pursuant to Section 8.2 below.
2
<PAGE> 3
3.2 If Sublessee remains in possession of all or any part of the
Subleased Premises after June 30, 2001, with the prior written consent of
Sublessor, such tenancy shall be on a month-to-month basis only and shall not
constitute a renewal or extension for any further term. If Sublessee remains in
possession of all or any part of the Subleased Premises after June 30, 2001,
without the prior written consent of Sublessor, such tenancy shall be a tenancy
at sufferance and Sublessor shall be entitled, without service of any
additional notice to Sublessee, to immediately commence legal proceedings to
recover possession of the Subleased Premises. No delay in the commencement of
any such proceedings shall constitute a waiver of Sublessor's rights to bring
such an action at a later date. If Sublessee remains in possession after June
30, 2001, either with or without Sublessor's consent, the monthly rent shall be
increased in an amount equal to one hundred fifty percent (150%) of the monthly
rent payable during the last month of the term, and any other sums due under
this Sublease shall be payable in the amount and at the time specified in this
Sublease. Such holdover tenancy shall be subject to every other term,
condition, and covenant contained herein. If Sublessee fails to surrender the
Subleased Premises to Sublessor upon the expiration of the term, Sublessee
shall indemnify and hold Sublessor harmless from all loss or liability
resulting from Sublessee's failure to surrender, including, without limitation,
any damages payable by Sublessor to Landlord under the Master Lease resulting
from Sublessor's failure to deliver possession as required under the Master
Lease.
3.3 Notwithstanding any option to extend the term set forth in the
Master Lease, Sublessee shall have no option to extend the term of this
Sublease.
4. RENT.
4.1 From April 1, 1999 through March 31, 2000, Sublessee shall pay
to Sublessor as rent for the Subleased Premises the sum of One Hundred Four
Thousand Sixty-Three and 85/1000 Dollars ($104,063.85) per month. From April 1,
2000 through March 31, 2001, Sublessee shall pay to Sublessor as rent for the
Subleased Premises the sum of One Hundred Seven Thousand Two Hundred Seventeen
and 30/100 Dollars ($107,217.30) per month. From April 1, 2001 through June 30,
2001, Sublessee shall pay to Sublessor as rent for the Subleased Premises the
sum of One Hundred Ten Thousand Three hundred Seventy and 75/1000 Dollars
($110,370.75). All such rent shall be paid in advance, on the first day of each
month of the term hereof. Sublessee shall pay Sublessor upon the execution
hereof the sum of One Hundred Four Thousand Sixty-Three and 85/100 Dollars
($104,063.85) as rent for the first month of the term. Rent for any period
during the term hereof which is for less than one month shall be prorated based
on the actual number of days in such month. Rent shall be payable without notice
or demand and without any deduction, offset, or abatement in lawful money of
the United States of America to Sublessor at the address stated herein or to
such other persons or at such other places as Sublessor amy designate in
writing.
4.2 It is understood and agreed that the rent paid by Sublessee
pursuant to paragraph 4.1 represents base rent only and does not include any of
the expenses to be paid by Tenant under the Master Lease, either directly or
indirectly, to Landlord, including without limitation the costs and expenses
set forth in sections 11, 12 and 13 of the Master Lease. Sublessee shall be
responsible for all such expenses and shall pay such expenses to Sublessor by
the date that Sublessor is required to pay same to Landlord under the Master
Lease.
3
<PAGE> 4
4.3 Sublease acknowledges that late payment by Sublessee to Sublessor
of rent and other charges provided for under this Sublease will cause Sublessor
to incur costs not contemplated by this Sublease will cause Sublessor to incur
costs not contemplated by this Sublease, the exact amount of such costs being
extremely difficult or impracticable to fix. Therefore, if any installment of
rent or any other charge due from Sublessee is not received by Sublessor within
five (5) days after the day on which such payment was due, Sublessee shall pay
to Sublessor an additional sum equal to five percent (5%) of the amount overdue
as a late charge. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Sublessor will incur by reason of the late
payment by Sublessee. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of base rent,
then rent shall automatically become due and payable quarterly in advance,
rather than monthly, notwithstanding any provision of this Sublease to the
contrary.
Initials:
/s/ JRB /s/ WSR /s/ FL
- ----------------------- ---------------------------
Sublessor Sublessee
5. SECURITY DEPOSIT. Upon execution of this Sublease, Sublessee shall
deposit with Sublessor the sum of One Hundred Ten Thousand Three Hundred Seventy
and 75/100 Dollars ($110,370.75) as security for Sublessee's faithful
performance of Sublessee's obligations hereunder. If Sublessee fails to pay rent
or other charges due hereunder, or otherwise defaults with respect to any
provision of this Sublease, Sublessor may use, apply or retain all or any
portion of said deposit for the payment of any rent or other charge in default
or for the payment of any other sum to which Sublessor may become obligated by
reason of Sublessee's default, or to compensate Sublessor for any loss or damage
which Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said deposit, Sublessee shall within ten (10) days after written
demand therefore deposit cash with Sublessor in an amount sufficient to restore
said deposit to the full amount hereinabove stated and Sublessee's failure to do
so shall be a breach of this Sublease. Sublessor shall not be required to keep
said deposit separate from its general accounts. If Sublessee performs all of
Sublessee's obligations hereunder, said deposit or so much thereof as had not
theretofore been applied by Sublessor shall be returned without payment of
interest for its use, to Sublessee within thirty (30) days after the expiration
of the term hereof or thirty (30) days after the date Sublessee has vacated the
Premises, whichever is later.
6. USE. The Subleased Premises shall be used and occupied only for
office, research and development, marketing, light manufacturing, storage and
other incidental use and any other use permitted by law, subject to the consent
of Sublessor and Landlord. Sublessee shall not use or permit the use of the
Subleased Premises in a manner that creates waste or a nuisance or that disturbs
owners or occupants of neighboring properties.
7. ALTERATIONS. Notwithstanding the provisions of SECTION 10 of the
Master Lease, Sublessee shall not make any alterations, additions or
improvements to the Subleased Premises without the prior written consent of
Sublessor and Landlord. Sublessee shall pay all costs charged by Landlord and
the actual costs incurred by Sublessor in connection with the review and
4
<PAGE> 5
approval of any sublessee-proposed alterations, additions or improvements. No
earlier than thirty (30) days prior to the expiration of the term of this
Sublease, Sublessee shall inquire in writing whether Sublessor or Landlord
shall require the removal of any alterations, additions or improvements made to
the Subleased Premises by Sublessee. At the expiration or sooner termination of
this Sublease, all alterations, additions or improvements installed in or made
to the Subleased Premises by Sublessee shall be removed and any damage caused
to the Subleased Premises shall be repaired at Sublessee's expense unless
Sublessor notifies Sublessee in writing prior to expiration of the Term that
such alterations, additions or improvements are to remain in the Subleased
Premises. If Sublessor or Landlord so notifies Sublessee that the alterations,
additions or improvements shall become the property of Sublessor or Landlord at
no cost (except that any trade fixtures and equipment may be removed by
Sublessee provided that Sublessee repair any damage to the Subleased Premises
caused by such removal).
8. EARLY OCCUPANCY.
8.1 Early Entry. During the period (the "Early Entry Period")
after January 1, 1999, and prior to the Commencement Date, Subtenant shall be
permitted to enter the Premises for the sole purpose of constructing its
Interior Improvements. Notwithstanding any other provision herein to the
contrary, Subtenant's use of the Premises during the Early Entry Period shall
be subject to all of the terms, covenants and conditions of this Sublease
(including Subtenant's obligations regarding indemnity and insurance),
provided, however, that Subtenant's obligation to pay Rent during the Early
Entry Period shall be waived. Notwithstanding the foregoing, Subtenant shall
pay for all utility costs incurred by Landlord or Sublessor to the extent they
relate to the Interior Improvements work being performed by Subtenant during
the Early Entry Period.
8.2 Early Commencement. Sublessee shall have the right at its
election to occupy the Premises prior to April 1, 1999 on the following terms
and conditions.
8.2.1 Sublessee may occupy the Premises in part after
January 1, 1999 for the installation of its test floor only, and the term shall
commence as of the date that the test floor is put into use, provided that the
monthly base rent as described in Sections 4.1 and 4.2 from the advanced
Commencement Date through March 31, 1999 shall be Nine Thousand Dollars
($9,000.00) per month.
8.2.2 Sublease may also occupy the entire Premises (which
shall mean any use and occupancy beyond the test floor) and the term of this
Sublease shall commence on the date that Sublessee begins business operations in
the Premises, provided that the monthly base rent as described in sections 4.1
and 4.2 from the advanced Commencement Date through March 31, 1999 shall be
Sixty-Seven Thousand Four Hundred Dollars ($67,400.00).
9. DAMAGE AND DESTRUCTION. In the event of the occurrence of an event
set forth in section 28 of the Master Lease, this Sublease shall terminate as
of the date of damage or destruction unless sublessee notifies Sublessor that
Sublessee desires to continue to occupy the Subleased Premises during the
remainder of the term of this Sublease notwithstanding
5
<PAGE> 6
such damage or destruction. In such event, the rent payable hereunder shall be
abated proportionately to the extent that Sublessee's use and occupancy of the
Subleased Premises is impaired by such damage or destruction. Sublessee
acknowledges, however, that Sublessor shall have no obligation to repair or
restore the Subleased Premises following any such damage or destruction.
10. SIGNAGE. Prior to the commencement of the term, Sublessor shall
remove its existing signage from the monuments at the Subleased Premises.
Subject to the prior written approval of Landlord and compliance with
applicable governmental regulations, Sublessee shall have the right to install
signage on the existing monument signs at the Subleased Premises.
11. BROKERS. Sublessor has retained Wayne Mascia Associates, and
Sublessee has retained Colliers Parrish International. Sublessor shall be
responsible for brokerage commissions according to Wayne Mascia Associates'
standard commission schedule and agreement with cooperating brokers. Sublessee
and Sublessor each warrants and represents to the other that it has had no
dealings with any other real estate broker or agent in connection with the
negotiation of this Sublease and that it knows of no other real estate broker
or agent who is or might be entitled to a commission in connection with this
Sublease. Sublessee and Sublessor shall indemnify, defend and hold the other
harmless from and against any and all liabilities or expenses, including
attorneys' fees and costs, arising from any claims made by any other broker or
individual for commissions or fees who claims to have represented the
indemnifying party in connection with this Sublease.
12. LANDLORD'S CONSENT. Sublessee acknowledges that this Sublease is
subject to the consent of the Landlord under the Master Lease. Accordingly,
this Sublease shall not be effective unless and until Landlord has consented to
this Sublease in writing. Sublessor shall use diligent efforts to obtain such
consent as soon as reasonably possible following execution of this Sublease by
Sublessor and Sublessee. Sublessor shall have no liability whatsoever to
Sublessee, however, if Sublessor is unable to obtain such consent from
Landlord. Sublessee shall cooperate and provide whatever documentation is
reasonably required by Landlord in order to obtain Landlord's consent to this
Sublease.
13. ADDRESSES FOR NOTICES. Any notice shall be served by certified
mail, return receipt requested, overnight courier or hand delivery. Notices
shall be deemed effective when received if served by hand delivery, one day
after being sent if delivered by overnight carrier or three (3) days after
deposit in the U.S. Mail if sent by certified mail. Sublessor's address for
notices, and the address to which sublessee shall make all payments of Rent due
hereunder, shall be 3050 Bowers Avenue, M/S 2753, Santa Clara, CA 95054,
Attention: Corporate Real Estate Manager. Rent installment payments shall be
sent to the address stated, Attention: Deborah Norris. A copy of any notice to
Sublessor shall be sent to: Applied Materials, Inc., Office of the General
Counsel, 2881 Scott Boulevard, M/S 2062, Santa Clara, CA 95051. Sublessee's
address for notices shall be the address for the Subleased Premises. Either
party may change the address for notices (or for rent payments) by giving
written notice as set forth in this section.
14. PERMITTED HAZARDOUS MATERIALS. To the extent permitted by the
Master Lease, Sublessee shall be permitted to use on the subleased Premises
usual and customary
6
<PAGE> 7
amounts of office and janitorial supplies, and the use of such products shall
not be deemed a breach of this Sublease. No. other Hazardous Materials are to be
used in or brought onto the Subleased Premises without the prior written consent
of Sublessor and Landlord, which consent may be withheld in each party's sole
and absolute discretion.
15. HAZARDOUS MATERIALS INDEMNIFICATION
Sublessee shall indemnify and hold Sublessor and Landlord harmless from
only those claims, liabilities, costs or expenses incurred or suffered by
Sublessor and Landlord arising from Sublessee's bringing, using, generating,
emitting or disposing Hazardous Materials on the Subleased Premises by
Sublessee, Sublessee's agents, employees, contractors, or invitees. Sublessee's
indemnification and hold harmless obligations include, without limitation, (i)
claims, liability, costs or expenses resulting from or based upon
administrative, judicial (civil or criminal) or other action, legal or
equitable, brought by any private or public person under common law or under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Resource Conservation and Recovery Act of 1980 ("RCRA") or any
other Federal, State, County or Municipal law, ordinance or regulation, (ii)
claims, liabilities, costs or expenses pertaining to the identification,
monitoring, cleanup, containment, or removal from soils, riverbeds or aquifers
of Hazardous Materials emitted, released, or disposed of on the Subleased
Premises by Sublessee, Sublessee's agents, employees, contractors or invitees,
and (iii) all costs of defending such claims.
Sublessor shall indemnify and hold Sublessee harmless from only those
claims, liabilities, costs or expenses incurred or suffered by Sublessee arising
from Sublessor's bringing, using, generating, emitting or disposing Hazardous
Materials on the Subleased Premises by Sublessor, harmless obligations include,
without limitation, (i) claims, liability, costs or expenses resulting from or
based upon administrative, judicial (civil or criminal) or other action, legal
or equitable, brought by any private or public person under common law or under
CERCLA, RCRA or any other Federal, State, County or Municipal law, ordinance or
regulation, (ii) claims, liabilities, costs or expenses pertaining to the
identification, monitoring, cleanup, containment, or removal from soils,
riverbeds or aquifers of Hazardous Materials emitted, released, or disposed of
on the Subleased Premises by Sublessor, Sublessor's agents, employees,
contractors or invitees, and (iii) all costs of defending such claims.
Sublessor and Sublessee acknowledge and agree that neither party shall have
any obligation to the other arising from the presence of Hazardous Materials at
the Subleased Premises which were not caused by such party or its agents,
employees, contractors or invitees.
16. SUBLESSOR'S OBLIGATIONS. With respect to work, service, repairs,
restoration or the performance of any other obligation of Landlord under the
Master Lease, the sole obligation of sublessor shall be to request the same in
writing from Landlord as and when requested to do so by Sublessee, and to use
Sublessor's reasonable efforts (without requiring sublessor to spend more than a
nominal sum) to obtain the Master Lessor's performance.
<PAGE> 8
17. SUBLESSEE'S OBLIGATIONS. Sublessee shall be responsible for each of
Sublessor's obligations as Tenant under the Master Lease, including without
limitation those obligations set forth in section 11. Within fifteen (15) days
after the Effective Date, Sublessee shall enter into service contracts with a
licensed air-conditioning and heating contractor and a licensed roof contractor
as specified in section 11 of the Master Lease. If Sublessee fails to perform
any such obligation, Sublessor shall, in addition to any other remedies
available to it, be entitled to perform such obligation and to collect from
Sublessee the cost therefor.
18. SUBLESSOR'S REPRESENTATION. Sublessor represents and warrants, to
the best of Sublessor's knowledge, that the Master Lease is in full force and
effect, and there exists under the Master Lease no default or event of default
by either Landlord or Sublessor, has any event occurred, or any circumstances
exist, which, with the giving of notice or passage of time or both, could
constitute such a default or event of default.
19. DEFAULT, BREACH AND REMEDIES. The provisions set forth in section 22
of the Master Lease are incorporated into this Sublease as if set forth fully
herein. In the event Sublease breaches any obligation of this Sublease
(including the terms of the Master Lease incorporated herein), Sublessor shall
have the right and remedies available to Landlord under the Master Lease.
20. SUBLESSOR'S ENTRY. Notwithstanding anything to the contrary contained
in the Master Lease or this Sublease, in entering upon the Subleased Premised,
Sublessor shall minimize interference with Sublessee's use of the Subleased
Premises to the extent possible and shall comply with Sublessee's reasonable
safety and security regulations.
21. CONSENTS. Except as otherwise provided in the Master Lease or this
Sublease, whenever the consent of Sublessor or Landlord is required to an act by
or for Sublessee, such consent shall not be unreasonably withheld or delayed.
Sublessor's and Landlord's actual costs and expenses incurred in the
consideration of, or response to, a request by Sublessee for any Sublessor or
Landlord consent pursuant to this Sublease shall be paid by Sublessee to
Sublessor or Landlord, as applicable, upon receipt of an invoice therefor.
Sublessor's consent to any act by Sublessee shall not constitute an
acknowledgement that no default or breach of this Sublease exists, nor shall
such consent be deemed to be a waiver of any then existing default or breach,
except as may otherwise specifically be stated in writing by Sublessor at the
time of such consent.
22. MERGER. This Sublease (including the applicable provisions of the
Master Lease) contains all agreements between Sublessor and Sublessee with
respect to Sublessee's hiring of the Subleased Premises, and no other prior to
contemporaneous agreement or understanding shall be effective.
23. INTENT OF THE PARTIES. It is the intent of the parties that at all
times during the term of this Sublease, Sublessee shall be responsible for all
obligations of, and expenses to be incurred by, Tenant under the Master Lease.
This Sublease shall be interpreted in accordance with the expressed intent of
the parties.
8
<PAGE> 9
EXHIBIT A
[SOBRATO DEVELOPMENT COMPANIES LETTERHEAD]
FIRST AMENDMENT TO LEASE
This first amendment to lease ("Amendment") is made this 26th day of November,
1997 by and between Sobrato Development Companies #871, a California limited
partnership having an address at 10600 N. De Anza Blvd., Suite 200, Cupertino,
California 95014 ("Landlord") and Applied Materials, a Delaware corporation
having its principal place of business at 3050 Bowers Avenue, Santa Clara,
California ("Tenant").
WITNESSETH
WHEREAS Landlord and Tenant entered into a lease dated May 9, 1995 (the "Lease")
for the premises ("Premises") located at 2450 Walsh Avenue in Santa Clara,
California; and
WHEREAS effective the date of this Amendment, Landlord and Tenant wish to modify
the Lease to reflect (i) Tenant's exercise of the first of its two Options to
extend the Lease Term pursuant to Lease paragraph 37.A; (ii) a revised
Expiration Date; and (iii) an increase in the Base Monthly Rent for the Option
Period from June 15, 1998 through June 30, 2001;
NOW, THEREFORE, in order to effect the intent of the parties set forth above and
for good and valuable consideration exchanged between the parties, the Lease is
amended as follows:
1. Tenant hereby exercises its Option to extend the Lease Term for the first
of its two Option Terms as defined in Lease paragraph 37.A.
2. The Expiration Date of the Lease is changed from June 14, 1998 to June 30,
2001.
3. Effective June 15, 1998, Base Monthly Rent shall be due and payable based
upon the following schedule:
June 15, 1998 through June 30, 1999: $91,450.00 per month
July 1, 1999 through June 30, 2000: $94,604.00 per month
July 1, 2000 through June 30, 2001: $97,757.00 per month
5. All defined terms shall have the same meanings as in the Lease, except as
otherwise stated in this Amendment.
IN WITNESS WHEREOF, the parties hereto have set their hands to this Amendment as
of the day and date first above written.
LANDLORD TENANT
Sobrato Development Companies #871 Applied Materials,
a California limited partnership a Delaware corporation
By: /s/ JOHN MICHAEL SOBRATO By: /s/ WEI CHIU
------------------------------ --------------------------------------
Its: JOHN MICHAEL SOBRATO Its: WEI CHIU
GENERAL PARTNER SENIOR DIRECTOR
GLOBAL REAL ESTATE & CONSTRUCTION
<PAGE> 10
24. PARKING LICENSE AGREEMENT. The Sublease of the Premises shall be
subject to the rights of Probe Technology Corporation ("Probe") pursuant to the
Parking License Agreement dated as of October 1, 1997, a copy of which is
attached hereto as EXHIBIT B, pursuant to which Probe has a license for the use
of twelve (12) parking spaces on the Premises. Upon the Commencement Date of the
Sublease, Sublandlord shall assign to Subtenant, and Subtenant shall assume, all
rights and obligations of Sublandlord under the Parking License Agreement.
SUBLESSOR SUBLESSEE
APPLIED MATERIALS, INC., TRIDENT MICROSYSTEMS, INC.,
a Delaware corporation a California corporation
By: /s/ THOMAS M. ROHRS By: /s/ W. STEVEN ROWE
------------------------------ ---------------------------------
Print Name: Thomas M. Rohrs Print Name: W. Steven Rowe
---------------------- -------------------------
Print Title: VP, Global Operations Print Title: Vice President of Admin.
--------------------- ------------------------
By: /s/ JOSEPH R. BRONSON By: /s/ FRANK C. LIN
------------------------------ ---------------------------------
Print Name: Joseph R. Bronson Print Name: Frank C. Lin
---------------------- -------------------------
Print Title: Sr. VP, Office of the Print Title: Chairman & CEO
--------------------- ------------------------
the President
CFO/CAO
9
<PAGE> 11
LEASE BETWEEN
SOBRATO DEVELOPMENT COMPANIES #871
AND
APPLIED MATERIALS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
Parties......................................................... 1
Premises........................................................ 1
Use............................................................. 1
Term and Rental................................................. 1
This paragraph intentionally left blank......................... 1
Late Charges.................................................... 1
Acceptance of Possession and Covenants to Surrender............. 1
Uses Prohibited................................................. 2
Alterations and Additions....................................... 2
Maintenance of Premises......................................... 3
Hazard Insurance................................................ 3
Tenant's Use............................................... 3
Landlord's Insurance....................................... 3
Tenant's Insurance......................................... 4
Waiver..................................................... 4
Taxes........................................................... 4
Utilities....................................................... 4
Abandonment..................................................... 4
Free From Liens................................................. 5
Compliance With Governmental Regulations........................ 5
Toxic Waste and Environmental Damage............................ 5
Tenant's Responsibility.................................... 5
Tenant's Indemnity Regarding Hazardous Materials........... 5
Actual Release by Tenant................................... 6
Environmental Monitoring................................... 6
Landlord's Indemnity Regarding Hazardous Materials......... 6
Indemnity....................................................... 6
Advertisements and Signs........................................ 7
Attorney's Fees................................................. 7
Tenant's Default................................................ 7
Remedies................................................... 8
Right to Re-enter.......................................... 8
Abandonment................................................ 8
No Termination............................................. 8
Surrender of Lease.............................................. 8
Habitual Default................................................ 9
Landlord's Default.............................................. 9
Notices......................................................... 9
Entry by Landlord............................................... 9
Destruction of Premises......................................... 9
Destruction by an Insured Casualty......................... 9
Destruction by an Uninsured Casualty....................... 10
Assignment or Sublease.......................................... 10
Consent by Landlord........................................ 10
Assignment or Subletting Consideration..................... 10
No Release................................................. 10
Effect of Default.......................................... 11
Condemnation.................................................... 11
Effects of Conveyance........................................... 11
Subordination................................................... 11
</TABLE>
EXHIBIT A
<PAGE> 12
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
Waiver.......................................................... 12
Holding Over.................................................... 12
Successors and Assigns.......................................... 12
Estoppel Certificates........................................... 12
Option to Extend the Lease Term................................. 12
Grant and Exercise of Option............................... 12
Determination of Fair Market Rental........................ 13
Resolution of a Disagreement over the Fair Market Rental... 13
Right Of First Offering To Lease................................ 13
Right Of First Offering To Purchase............................. 14
Options......................................................... 14
Quiet Enjoyment................................................. 14
Brokers......................................................... 15
Landlord's Liability............................................ 15
Authority of Parties............................................ 15
Transportation Demand Management programs....................... 15
Dispute Resolution.............................................. 15
Miscellaneous Provisions........................................ 15
Rent....................................................... 15
Management Fee............................................. 15
Performance by Landlord.................................... 15
Interest................................................... 15
Rights and Remedies........................................ 15
Survival of Indemnities.................................... 16
Severability............................................... 16
Choice of Law.............................................. 16
Time....................................................... 16
Entire Agreement........................................... 16
Representations............................................ 16
Headings................................................... 16
Exhibits................................................... 16
Exhibit "A" - Premises.......................................... 17
Exhibit "B" - Tenant Improvements............................... 18
</TABLE>
Page ii
<PAGE> 13
1. PARTIES: THIS LEASE, is entered into on this 9th day of May, 1995,
between Sobrato Development Companies #871, a California Limited Partnership,
whose address is 10600 North De Anza Boulevard, Suite 200, Cupertino, CA 95014
and Applied Materials, a Delaware Corporation, whose address is 3050 Bowers
Avenue, Santa Clara, California 95054, hereinafter called respectively Landlord
and Tenant.
2. PREMISES: Landlord hereby leases to Tenant, and Tenant hires from
Landlord those certain Premises with the appurtenances, situated in the City of
Santa Clara, County of Santa Clara, State of California, and more particularly
described as follows, to wit:
That certain real property commonly known and designated as 2450 Walsh Avenue
consisting of 63,069 rentable square feet ("Building") as outlined in red on
Exhibit "A".
3. USE: Tenant shall use the Premises only for the following purposes
and shall not change the use of the Premises without the prior written consent
of Landlord: Office, research and development, marketing, light manufacturing,
storage and other incidental use and any other use permitted by law, subject to
Landlord's consent. Landlord makes no representation or warranty that any
specific use of the Premises desired by Tenant is permitted pursuant to any
Laws.
4. TERM AND RENTAL: The term ("Lease Term") shall be for thirty-seven
and one half (37.5) months, commencing on the 1st day of May, 1995
("Commencement Date"), and ending on the 14th day of June, 1998, ("Expiration
Date"). In addition to all other sums payable by Tenant under this Lease,
Tenant shall pay as base monthly rent ("Base Monthly Rent") for the Premises
the sum of Fifty-Three Thousand Six Hundred Nine and No/100 Dollars
($53,609.00). Notwithstanding the foregoing, Tenant's obligation to pay Base
Monthly Rent shall not commence until June 15, 1995 ("Rent Commencement Date").
Base Monthly Rent shall be due on or before the first day of each calendar
month during Lease Term. All sums payable by Tenant under this Lease shall be
paid in lawful money of the United States of America, without offset or
deduction, and shall be paid to Landlord at the address specified in paragraph
1 of this Lease or at such place or places as may be designated from time to
time by Landlord. Base Monthly Rent for any period less than a calendar month
shall be a pro rata portion of the monthly installment.
Concurrently with Tenant's execution of this Lease, Tenant shall pay to
Landlord the sum of Twenty-Six Thousand Eight Hundred Four and 50/100 Dollars
($26,804.50) as prepaid rent for the period from June 15, 1995 through June
30, 1995.
5. This paragraph intentionally left blank.
6. LATE CHARGES: Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Monthly Rent and other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, administrative, processing, accounting charges, and late charges,
which may be imposed on Landlord by the terms of any contract, revolving
credit, mortgage or trust deed covering the Premises. Accordingly, if any
installment of Base Monthly Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee when due, Tenant shall pay to
Landlord a late charge equal to five (5%) percent of such overdue amount which
late charge shall be due and payable on the same date that the overdue amount in
question was due. Landlord agrees to waive said late charge in the event all
amounts set forth in any notice served upon Tenant by Landlord to pay rent or
quit in connection with the overdue amount are paid in full by cashier's check
within five (5) days after Landlord's written notice to Tenant of non-payment or
within five (5) days after Landlord's service upon Tenant of such notice to
quit or pay rent. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount,
nor prevent Landlord from exercising any of the other rights and remedies
granted hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of Base
Monthly Rent, then rent shall automatically become due and payable quarterly in
advance, rather than monthly, notwithstanding any provision of this Lease to
the contrary.
7. This paragraph intentionally left blank.
8. ACCEPTANCE OF POSSESSION AND COVENANTS TO SURRENDER: Landlord agrees
to deliver the Premises on the Rent Commencement Date in good operating
condition and
Page 1
<PAGE> 14
repair, including the parking lot, elevator, roof membrane, HVAC and electrical
systems, and plumbing. Tenant shall thereafter accept the Premises as being in
good and sanitary order, condition and repair and accepts the Premises and the
other improvements in said condition. If Landlord, for any reason whatsoever,
cannot deliver possession of the said Premises to Tenant for Tenant's interior
work by May 1, 1995, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom; but
in that event the Rent Commencement Date and Expiration Date of the Lease and
all other dates affected thereby shall be revised to conform to the date of
Landlord's delivery of possession. If Landlord is unable to deliver possession
of the Premises to Tenant by August 1, 1995, plus any days of delay caused by
Tenant, Tenant shall have the right to terminate this Lease by written notice
to Landlord. If Tenant has not given written notice of termination by September
1, 1995, Tenant shall be deemed to have elected to continue the Lease in full
force and effect pending the Commencement Date.
Tenant further agrees on Expiration Date, or on the sooner termination of
this Lease, to surrender the Premises to Landlord in good condition and repair,
reasonable wear and tear excepted. "Good condition" shall mean that the interior
walls, floors, suspended ceilings, and carpeting within the Premises will be
cleaned to the same condition as existed at the commencement of the Lease,
normal wear and tear excepted. Tenant agrees, at its sole costs, to remove all
phone and data cabling from the suspended ceiling and repair or replace broken
ceiling tiles, and relevel the ceiling if required. Tenant on or before the
Expiration Date or sooner termination of this Lease, shall remove all its
personal property and trade fixtures from the Premises, and all property and
fixtures not so removed shall be deemed to be abandoned by Tenant. Tenant shall
ascertain from Landlord within thirty (30) days before the Expiration Date
whether Landlord desires to have the Premises or any part or parts thereof
restored to their condition as of the Commencement Date or to cause Tenant to
surrender all Alterations in place to Landlord. If Landlord shall so desire,
then Tenant shall remove such Alterations as Landlord may require and shall
repair and restore said Premises or such part or parts thereof before the
Expiration Date at Tenant's sole cost and expense. Such repair and restoration
shall include causing the Premises to be brought into compliance with all
applicable building codes and laws in effect at the time of the removal to
extent such compliance is necessitated by the repair and restoration work. If
the Premises are not surrendered at the Expiration Date or sooner termination of
this Lease in the condition required by this paragraph, Tenant shall indemnify,
defend, and hold harmless Landlord against loss or liability resulting from
delay by Tenant in so surrendering the Premises including, without limitation,
any claims made by any succeeding tenant founded on such delay.
9. USES PROHIBITED: Tenant shall not commit, or suffer to be committed,
any waste upon the said Premises, or any nuisance, or other act or thing which
may disturb the quiet enjoyment of any other tenant in or around the Premises
or allow any sale by auction upon the Premises, or allow the Premises to be
used for any unlawful or objectionable purposes, or place any loads upon the
floor, walls, or ceiling which endanger the structure, or use any machinery or
apparatus which will in any manner vibrate or shake the Premises, or place any
harmful liquids, waste materials, or hazardous materials in the drainage system
of, or upon or in the soils surrounding the Building. No materials, supplies,
equipment, finished products or semi-finished products, raw materials or
articles of any nature or any waste materials, refuse, scrap or debris shall be
stored upon or permitted to remain on any portion of the Premises outside of
the Building proper without Landlord's prior approval, which approval may be
withheld in its sole discretion.
10. ALTERATIONS AND ADDITIONS: Other than the initial interior
improvements made by the Tenant to the Premises ("Tenant Improvements") as
generally shown on the attached Exhibit "B", which Tenant shall not be required
to remove, Tenant shall not make, or suffer to be made, any alteration or
addition to the said Premises ("Alterations"), or any part thereof, without (i)
the written consent of Landlord first had and obtained, and (ii) delivering to
Landlord the proposed architectural and structural plans for all such
Alterations. After having obtained Landlord's consent (if required), Tenant
agrees that it shall not proceed to make such Alterations until (i) Tenant has
obtained all required governmental approvals and permits, and (ii) Tenant has
provided Landlord reasonable security, in form reasonably approved by Landlord,
to protect Landlord against mechanics' lien claims. Tenant further agrees to
provide Landlord (i) written notice of the anticipated start date and actual
start date of the work, and (ii) a complete set of half-size (15" X 21") vellum
as-built drawings. All Alterations shall be construed in compliance with
applicable buildings codes and laws. Any Alterations, except movable furniture
and trade fixtures, shall become at once a part of the realty and belong to
Landlord, but shall nevertheless be subject to removal by Tenant as provided in
paragraph 8 above. Alterations which are not to be deemed as trade fixtures
shall include heating, lighting, electrical systems, air conditioning,
partitioning, carpeting, or any other installation which has become an integral
part of the Premises. All Alterations shall be maintained, replaced or repaired
by Tenant at Tenant's sole cost and expense.
Notwithstanding the foregoing, Tenant shall be entitled without obtaining
Landlord's consent, to make any alteration or addition to the Premises
("Alterations") which (i) does not affect the structure of the Building, (ii)
cost does not exceed $15,000 per alteration nor an aggregate of $25,000 in any
Page 2
<PAGE> 15
12-month period. All other Alterations shall require Landlord's consent. In
order to obtain consent, Tenant shall deliver to Landlord the proposed
architectural and structural plans for all such Alterations.
Landlord shall reimburse Tenant for Tenant Improvements up to One Hundred
Twenty Five Thousand and No/100 Dollars ($125,000.00). Said reimbursement shall
be paid within fifteen (15) days of Landlord's receipt from Tenant of evidence
that the Tenant Improvements have been performed and paid for by Tenant.
11. MAINTENANCE OF PREMISES: Landlord at its sole cost and expense,
shall maintain in good condition, order, and repair, and replace as and when
necessary, the foundation, exterior load bearing walls and roofs structure of
the Building Shell. Landlord shall also, subject to prompt reimbursement by
Tenant, maintain in good condition, order and repair, and replace as and when
necessary, the Building elevator. Tenant shall, at its sole cost, keep and
maintain, repair and replace, said Premises and appurtenances and every part
hereof, including but not limited to, roof membrane, glazing, sidewalks,
parking areas, telephone, plumbing, electrical and HVAC systems, and all the
Tenant Improvements in good and sanitary order, condition, and repair. Tenant
shall provide Landlord with a copy of a service contract between Tenant and a
licensed air-conditioning and heating contractor which contract shall provide
for bi-monthly maintenance of all air conditioning and heating equipment at the
Premises. Tenant shall pay the cost of all air-conditioning and heating
equipment at the Premises. Tenant shall pay the cost of all air-conditioning
heating, and elevator equipment repairs or replacements which are either
excluded from such service contract or any existing equipment warranties. All
wall surfaces and floor tile are to be maintained in an as good a condition as
when Tenant took possession free of holes, gouges, or defacements.
Tenant shall also be responsible, at its sole cost and expense for the
preventive maintenance of the membrane of the roof, which responsibility shall
be deemed properly discharged if (i) Tenant contracts with a licensed roof
contractor who is reasonably satisfactory to both Tenant and Landlord
("Approved Roof Contractor"), at Tenant's sole cost, to inspect the roof
membrane at least every six (6) months, with the first inspection due the sixth
(6th) month after the commencement Date, and (ii) Tenant performs, at Tenant's
sole cost, all preventive maintenance recommendations made by such contractor
within a reasonable time after such recommendations are made. Such preventive
maintenance might include acts such as clearing storm gutters and drains,
removing debris from the roof membrane, trimming trees overhanging the roof
membrane, applying coating materials to seal roof penetrations, repairing
blisters, and other routine measures. Tenant shall provide to Landlord a copy
of such preventive maintenance contract and paid invoices for the recommended
work. Tenant agrees, at its expense, to water, maintain and replace, when
necessary, any shrubbery and landscaping. Tenant shall have no responsibility
to perform any repair, maintenance or improvement (i) necessitated by the acts
or omissions of Landlord or its agents, employees or contractors, (ii)
occasioned by fire, acts of God or other casualty, whether or not covered by
insurance, or by the exercise of the power of eminent domain, (iii) required as
a consequence of any violation of laws or construction defect in the Premises
as of the Commencement Date, or (iv) for which Landlord has a right of
reimbursement from others.
Notwithstanding the foregoing, in the event Tenant's maintenance or repair
obligations hereunder would require Tenant to pay for a capital repair or
replacement costing in excess of Five thousand and No/100 Dollars ($5,000.00),
Tenant shall only be required to pay (i) the initial $5,000.00, and (ii) that
portion of the cost over the initial $5,000.00 equal to the product of such cost
multiplied by a fraction, the numerator of which is the number of years
remaining in the Lease Term, the denominator of which is the useful life (in
years) of the replacement.
12. HAZARD INSURANCE:
A. Tenant's Use: Tenant shall not use, or permit said Premises,
or any part thereof, to be used, for any purpose other than that for which the
said Premises are hereby leased; and no use shall be made or permitted to be
made of the said Premises, nor acts done, which will cause a cancellation of
any insurance policy covering said Premises, or any part thereof, nor shall
Tenant sell or permit to be kept, used or sold, in or about said Premises, any
article which may be prohibited by the standard form of fire insurance
policies. Tenant shall, at its sole cost and expense, comply with any and all
requirements, pertaining to said Premises, of any insurance organization or
Company, necessary for the maintenance of reasonable fire and public liability
insurance, covering said Premises and appurtenances.
B. Landlord's Insurance: Landlord agrees to purchase and keep
in force fire, extended coverage, earthquake (at Landlord's election), owner's
liability, and 12 month rental loss insurance. The amount of the said insurance
shall not exceed the replacement cost of the Building (not including any Tenant
Improvements or Alterations paid for by Tenant) as determined by Landlord's
insurance company's appraisers. The Tenant agrees to pay to the Landlord as
additional rent, on demand, the full cost of said insurance as evidenced by
insurance billings to the Landlord, and in the
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event of damage covered by said insurance, the amount of any reasonable
deductible under such policy. Payment shall be due to Landlord within thirty
(30) days after written invoice to Tenant. Notwithstanding the foregoing,
Tenant's obligation to pay for the cost of any earthquake insurance premiums
shall be limited to an amount equal to or less than four (4) times the cost of
the fire and extended coverage premiums. It is understood and agreed that
Tenant's obligation under this paragraph will be prorated to reflect the
commencement and termination dates of this Lease.
C. Tenant's Insurance: Tenant, at its sole cost, agrees to
insure its personal property, Tenant Improvements paid for by Tenant, and
alterations for their full replacement value (without depreciation) and to
obtain worker's compensation and public liability and property damage insurance
for occurrences within the Premises with combined limits for bodily injury and
property damage of not less than $1,000,000.00 per occurrence and a general
aggregate limit of not less than $5,000,000.00. Tenant shall name Landlord and
Landlord's lender as an additional insured, shall deliver a copy of the
policies and renewal certificates to Landlord. All such policies shall provide
for thirty (30) days' prior written notice to Landlord of any cancellation,
termination, or reduction in coverage. Notwithstanding the above, Landlord
retains the right to have Tenant provide other forms of insurance which may be
available at commercially reasonable cost and are customarily carried by
entities in Tenant's business or required of tenants of similar properties in
Santa Clara County to cover future risks.
D. Waiver: Landlord and Tenant hereby waive any and all rights
each may have against the other on account of any loss, damage, cost, claims or
judgments occasioned to the Landlord or the Tenant as the case may be, or to
the Premises or its contents, and which may arise from any risk covered by
their respective insurance policies (or which would have been covered had such
insurance policies been maintained in accordance with this Lease), as set forth
above. The parties shall use their reasonable efforts to obtain from their
respective insurance companies a waiver of any right of subrogation which said
insurance company may have against the Landlord or the Tenant, as the case may
be. If a party is unable to obtain such waiver of subrogation from its insurance
company, the other party shall have no obligation to provide the waiver of
subrogation.
13. TAXES: Tenant shall be liable for, and shall pay prior to
delinquency, all taxes and assessments levied against personal property and
trade or business fixtures, and agrees to pay, as additional rental, all real
estate taxes and assessment installments (special or general) or other
impositions or charges which may be levied on the Premises, upon the occupancy
of the Premises and including any substitute or additional charges which may be
imposed during, or applicable to the Lease Term including real estate tax
increases due to a sale or other transfer of the Premises, as they appear on
the City and County tax bills during the lease Term, and as they become due. It
is understood and agreed that Tenant's obligation under this paragraph will be
prorated to reflect the Commencement and Expiration Dates. If, at any time
during the Lease Term a tax, excise on rents, business license tax, or any
other tax, however described, is levied or assessed against Landlord, as a
substitute or addition in whole or in part for taxes assessed or imposed on
land or Buildings, Tenant shall pay and discharge his pro rata share of such
tax or excise on rents or other tax before it becomes delinquent, except that
this provision is not intended to cover net income taxes, inheritance, gift or
estate tax imposed upon the Landlord. In the event that a tax is placed,
levied, or assessed against Landlord and the taxing authority takes the
position that the Tenant cannot pay and discharge his pro rata share of such
tax on behalf of the Landlord, then at the sole election of the Landlord, the
Landlord may increase the rental charged hereunder by the exact amount of such
tax and Tenant shall pay such increase as additional rent hereunder. If by
virtue of any application or proceeding brought by or on behalf of Landlord,
there results a reduction in the assessed value of the Building during the
Lease Term, Tenant agrees to reimburse Landlord its out of pocket costs
incurred by Landlord in connection with such application or proceeding in an
amount annually not to exceed the annual savings in taxes.
14. UTILITIES: Tenant shall pay directly to the providing utility all
water, gas, heat, light, power, telephone and other utilities supplied to the
Premises. Landlord shall not be liable for a loss of or injury to property,
however occurring, through or in connection with or incidental to furnishing or
failure to furnish any utilities to the Premises and Tenant shall not be
entitled to abatement or reduction of any portion of the Base Monthly Rent so
long as any failure to provide and furnish the utilities to the Premises is due
to a cause beyond the Landlord's reasonable control; provided, however, that
Tenant shall be entitled to an abatement of rent for impairment to or
interruption with use of the premises or any event which would be covered by
rent loss insurance.
15. ABANDONMENT: Tenant shall not abandon the Premises at any time
during the Lease Term, but Tenant shall not be deemed to have abandoned the
Premises so long as it continues to pay rent and maintain the Premises pursuant
to the lease. If Tenant shall surrender said Premises, or be dispossessed by
process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of
Landlord, except such property as may be mortgaged to Landlord.
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16. FREE FROM LIENS: Tenant shall keep the Premises free from any liens
arising out of any work performed, materials furnished, or obligations incurred
by Tenant or claimed to have been performed for Tenant. In the event Tenant
fails to discharge any such lien within ten (10) days after receiving notice
of the filing, Landlord shall be entitled to discharge such lien at Tenant's
expense and all resulting costs incurred by Landlord, including attorney's fees
shall be due from Tenant as additional rent.
17. COMPLIANCE WITH GOVERNMENTAL REGULATIONS: Tenant shall, at its sole
cost and expense, comply with all of the requirements of all Municipal, State
and Federal authorities now in force, or which may hereafter be in force,
pertaining to the said Premises and arising from Tenant's use of the Premises,
and shall faithfully observe in the use of the Premises all Municipal
ordinances and State and Federal statutes now in force to which may hereafter be
in force. The judgment of any courts of competent jurisdiction, or the
admission of Tenant in any action or proceeding against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such ordinance
or statute in the use of the Premises, shall be conclusive of that fact as
between Landlord and Tenant.
Notwithstanding the foregoing, Landlord shall, at its sole cost and expense,
make any required alterations to bring the Premises into compliance with the
provisions of the Americans with Disabilities Act ("ADA") by the Rent
Commencement Date. In the event Landlord has not completed its work by the Rent
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, but in that
event the Rent Commencement Date and Expiration Date of the Lease and all other
dates affected thereby shall be revised to conform to the date of Landlord's
completion of the work required this paragraph.
18. TOXIC WASTE AND ENVIRONMENTAL DAMAGE:
A. Tenant's Responsibility: Without the prior written consent of
Landlord, Tenant shall not bring, use, or permit upon the Premises, or generate,
create, release, emit, or dispose (nor permit any of the same) from the Premises
any chemicals, toxic or hazardous gaseous, liquid or solid materials or waste,
including without limitation, material or substance having characteristics of
ignitability, corrosivity, reactivity, or toxicity or substances or materials
which are listed on any of the Environmental Protection Agency's lists of
hazardous wastes or which are identified in Sections 66680 through 66685 of
Title 22 of the California Administrative Code as the same may be amended from
time to time ("Hazardous Materials"). In order to obtain consent, Tenant shall
deliver to Landlord its written proposal describing the toxic material to be
brought onto the Premises, measures to be taken for storage and disposal
thereof, safety measures to be employed to prevent pollution of the air, ground,
surface and ground water. Any Hazardous Materials Management Plan (HMMP)
submitted and approved by the City of Santa Clara in connection with any
Hazardous Materials to be used at the Premises would satisfy that requirement.
Landlord's approval may be withheld in its reasonable judgment. In the event
Landlord consents to Tenant's use of Hazardous Materials on the Premises, Tenant
represents and warrants that Tenant will (i) adhere to all reporting and
inspection requirements imposed by Federal, State, County or Municipal laws,
ordinances or regulations and will provide Landlord a copy of any such reports
or agency inspections, (ii) obtain and provide Landlord copies of all necessary
permits required for the use and handling Hazardous Materials on the Premises,
(iii) enforce Hazardous Materials handling and disposal practices consistent
with industry standards, (iv) surrender the Premises free from any Hazardous
Materials arising from Tenant's bringing, using, permitting, generating,
emitting or disposing of Hazardous Materials, and (v) properly close the
facility with regard to Hazardous Materials including the removal or
decontamination of any process piping, mechanical ducting, storage tanks,
containers, or trenches which have come into contact with Hazardous Materials
and obtain a closure certificate from the local administering agency prior to
the Expiration Date.
Notwithstanding the foregoing, Tenant shall not be required to obtain
Landlord's consent to bring onto the Premises or use usual and customary
amounts of office and janitorial supplies.
B. Tenant's Indemnity Regarding Hazardous Materials. Tenant shall
comply, at its sole cost, with all laws pertaining to, and shall indemnify and
hold Landlord harmless from any claims, liabilities, costs or expenses incurred
or suffered by Landlord arising from such bringing, using, permitting,
generating, emitting or disposing of Hazardous Materials on the Premises by
Tenant, Tenant's agents, employees, contractors, or invitees. Tenant's
indemnification and hold harmless obligations include, without limitation, (i)
claims, liability, costs or expenses resulting from or based upon
administrative, judicial (civil or criminal) or other action, legal or
equitable, brought by any private or public person under common law or under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Resource Conservation and Recovery Act of 1980 ("RCRA") or
any other Federal, State, County or Municipal law, ordinance or regulation, (ii)
claims, liabilities, costs or expenses pertaining to the identification,
monitoring, cleanup, containment, or removal from soils, riverbeds or aquifers
of Hazardous Materials emitted
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released, or disposed of on the Premises by Tenant, Tenant's agents, employees,
contractors or invitees, and (iii) all costs of defending such claims.
C. Actual Release by Tenant: Tenant agrees to notify Landlord of any
lawsuits which relate to, or orders which relate to the remedying of, the actual
release of Hazardous Materials on or into the soils or groundwater at or under
the Premises. Tenant shall also provide to Landlord all notices required by
Section 25359.7(b) of the Health and Safety Code and all other notices required
by law to be given to Landlord in connection with Hazardous Materials. Without
limiting the foregoing, Tenant shall also deliver to Landlord, within twenty
(20) days after receipt thereof, any written notices from any governmental
agency alleging a material violation of, or material failure to comply with, any
federal, state or local laws, regulations, ordinances or orders, the violation
of which of failure to comply with, poses a foreseeable and material risk of
contamination of the groundwater or injury to humans (other than injury solely
to Tenant, its agencies and employees within the Improvements on the Property).
In the event of any release on or into the Premises or into the soil or
groundwater under the Premises of any Hazardous Materials used, treated, stored
or disposed of by Tenant, Tenant agrees to comply, at its sole cost and expense,
with all laws, regulations, ordinances and orders of any federal, state or local
agency relating to the monitoring or remediation of such Hazardous Materials. In
the event of any such release of Hazardous Materials, Tenant agrees to meet and
confer with Landlord and its Lender to attempt to eliminate and mitigate any
financial exposure to such Lender and resultant exposure to Landlord under
California Code of Civil Procedure section 736(b) as a result of such release
and promptly to take reasonable monitoring, cleanup and remedial steps given,
inter alia, the historical uses to which the Property has and continues to be
used, the risks to public health posed by the release, the then available
technology and the costs of remediation, cleanup and monitoring consistent with
acceptance customary practices for the type and severity of such contamination
and all applicable laws. Nothing in the preceding sentence shall eliminate,
modify or reduce the obligation of Tenant under paragraph 20.B of this Lease to
indemnify and hold Landlord harmless from any claims liabilities, costs or
expenses incurred or suffered by Landlord as provided in paragraph 20.B of this
Lease. Tenant shall provide Landlord prompt written notice of Tenant's
monitoring cleanup and remedial steps.
In the absence of an order of any federal, state or local governmental or
quasi-governmental agency relating to the cleanup, remediation or other response
action required by applicable law, any dispute arising between Landlord and
Tenant concerning Tenant's obligation to Landlord under this Paragraph C
concerning the Level, method, and manner of cleanup, remediation or response
action required in connection with such a release of Hazardous Materials shall
be resolved by mediation and/or arbitration pursuant to the provisions of
paragraph 44 of this Lease.
D. Environmental Monitoring: Landlord and its agents shall have the
right to inspect, investigate, sample and/or monitor the Premises, including any
air, soil, water, groundwater or other sampling or any other testing, digging,
drilling or analysis to determine whether Tenant is complying with the terms of
this paragraph 18. If Landlord discovers that Tenant is not in compliance with
the terms of this paragraph 18, any such costs incurred by Landlord, including
attorneys' and consultants' fees shall be due and payable by Tenant to Landlord
within five days following Landlord's written demand therefore.
E. Landlord's Indemnity Regarding Hazardous Materials: Landlord shall
indemnify and hold Tenant harmless from any claims, liabilities, costs or
expenses incurred or suffered by Tenant related to the removal, investigation,
monitoring or remediation of Hazardous Materials which are present or which
come to be present on the Premises except to the extent the presence of such
Hazardous Materials is caused by Tenant or by Tenant's willful failure to
prevent a third party from dumping Hazardous Materials through the surface of
the Premises. Landlord's indemnification and hold harmless obligations include,
without limitation, (i) claims, liability, costs or expenses resulting from or
based upon administrative, judicial (civil or criminal) or other action, legal
or equitable, brought by any private or public person under common law or under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Resource Conservation and Recovery Act of 1980 ("RCRA") or
any other Federal, State, County or Municipal law, ordinance or regulation,
(ii) claims, liabilities, costs or expenses pertaining to the identification,
monitoring, cleanup, containment, or removal of Hazardous Materials from soils,
riverbeds or aquifers including the provision of an alternative public drinking
water source, and (iii) all costs of defending such claims. In no event shall
Landlord be liable for any consequential damages suffered or incurred by Tenant
as a result of any such contamination.
The foregoing indemnity by Landlord to Tenant shall not apply to any mortgagee
or its assignee which takes title to the Premises pursuant to a deed in lieu of
foreclosure, foreclosure or otherwise.
19. INDEMNITY: As a material part of the consideration to be rendered to
Landlord,
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Tenant hereby waives all claims against Landlord for damages to goods, wares and
merchandise, and all other personal property in, upon or about said Premises and
for injuries to persons in or about said Premises, from any cause arising at any
time to the fullest extent permitted by law, and Tenant shall indemnify and hold
Landlord exempt and harmless from any damage or injury to any person, or to the
goods, wares and merchandise and all other personal property of any person,
arising from the use of the Premises, Building, and/or Project by Tenant, its
employees, contractors, agents and invitees or from the failure of Tenant to
keep the Premises in good condition and repair, as herein provided, except to
the extent due to the active negligence or willful misconduct of Landlord.
Further, in the event Landlord is made party to any litigation due to the acts
or omission of Tenant, its employees, contractors, agents and invitees, Tenant
will indemnify and hold Landlord harmless from any such claim or liability
including Landlord's costs and expenses and reasonable attorney's fees incurred
in defending such claims.
Landlord shall indemnify and hold Tenant harmless from any and all loss, cost,
damage, injury or expense arising out of or related to (i) claims of injury to
or death of persons or damage to property occurring or resulting directly or
indirectly from the negligence or willful misconduct of Landlord, its agents or
employees ("Landlord's Indemnity Obligation"), and (ii) claims arising from any
breach or default on the part of Landlord in the performance of any covenant
contained in this Lease. Landlord shall also indemnify Tenant and hold Tenant
harmless against any loss, expense, damage, attorney's fees or liability arising
out of the failure of Landlord to comply with any applicable laws in effect as
of the Commencement Date. Such indemnity shall include without limitation the
obligation to provide all costs of defense against any such claims including any
action or proceeding brought against Tenant. The provisions of this paragraph
shall survive the expiration or termination of this Lease with respect to any
claims or liability occurring prior to such expiration or termination.
20. ADVERTISEMENTS AND SIGNS: Tenant will not place or permit to be
placed, in, upon or about the said Premises any unusual or extraordinary signs,
or any signs not approved by the city or other governing authority. The Tenant
will not place, or permit to be placed, upon the Premises, any signs,
advertisements or notices without the written consent of the Landlord as to
type, size, design, lettering, coloring and location, and such consent will not
be unreasonably withheld. Any sign so placed on the Premises shall be removed by
Tenant, at its expense, prior to the Expiration Date or promptly following the
earlier termination of the lease and Tenant shall repair, at its sole cost and
expense, any damage or injury to the Premises caused thereby, and if not so
removed by Tenant then Landlord may have same so removed at Tenant's expense.
Tenant shall have the right to install its standard monument sign at the current
location of the monument sign on the Premises.
21. ATTORNEY'S FEES: In case a suit or alternative form of dispute
resolution should be brought for the possession of the Premises, for the
recovery of any sum due hereunder, or because of the breach of any other
covenant herein, the losing party shall pay to the prevailing party a reasonable
attorney's fee including the expense of expert witnesses, depositions and court
testimony as part of its costs which shall be deemed to have accrued on the
commencement of such action. In addition, the prevailing party shall be entitled
to recover all costs and expenses including reasonable attorney's fees incurred
by the prevailing party in enforcing any judgment or award against the other
party. The foregoing provision relating to post-judgment costs is intended to be
severable from all other provisions of this Lease.
22. TENANT'S DEFAULT: The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant: a) Any failure
by Tenant to pay any rent under this Lease on or before the date such rent is
due under this Lease; b) The abandonment of the Premises by Tenant; c) A failure
by Tenant to observe and perform any other provision of this Lease to be
observed or performed by Tenant, where such failure continues for thirty (30)
days after written notice thereof by Landlord to Tenant; provided, however, that
if the nature of such default is such that the same cannot reasonably be cured
within such thirty (30) day period Tenant shall not be deemed to be in default
if Tenant shall within such period commence such cure and thereafter diligently
prosecute the same to completion; d) The making by Tenant of any general
assignment for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or of a petition for reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed after the filing); the
appointment of a trustee or receive to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days. The notice requirements set
forth herein are in lieu of and not in addition to the notices required by
California Code of Civil Procedure Section 1161. Any notice given by Landlord to
Tenant pursuant to California Civil Code 1161 with respect to any failure by
Tenant to pay rent under this Lease on or before the date the rent is due shall
provide Tenant with a period of no less than ten (10) days to pay such rent or
quit.
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A. Remedies: In the event of any such default by Tenant, then in
addition to any other remedies available to Landlord at law or in equity,
Landlord shall have the immediate option to terminate this Lease and all rights
of Tenant hereunder by giving written notice of such intention to terminate. In
the event that Landlord shall elect to so terminate this Lease then Landlord
may recover from Tenant: a) the worth at the time of award of any unpaid rent
which had been earned at the time of such termination; plus b) the worth at the
time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss for the same period that Tenant proves could have been reasonably
avoided; plus c) the worth at the time of award of the amount by which the
unpaid rent for the balance of the Lease Term after the time of award exceeds
the amount of such rental loss that Tenant proves could be reasonably avoided;
plus d) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom, and e) at Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
California law. The term "rent", as used herein, shall be deemed to be and to
mean the minimum monthly installments of Base Monthly Rent and all other sums
required to be paid by Tenant pursuant to the terms of this Lease, all other
such sums being deemed to be additional rent due hereunder. As used in (a) and
(b) above, the "worth at the time of award" is to be computed by allowing
interest at the rate of the discount rate of the Federal Reserve Bank of San
Francisco plus five (5%) percent per annum. As used in (c) above, the "worth at
the time of award" is to be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus one
(1%) percent.
B. Right To Re-enter: In the event of any such default by Tenant,
Landlord shall also have the right, with or without terminating this Lease, to
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant and disposed of by Landlord in any
manner permitted by law.
C. Abandonment: In the event of the abandonment of the Premises by
Tenant or in the event that Landlord shall elect to re-enter as provided in
paragraph 22.B above or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease as provided in paragraph 22.A above, then the
provisions of California Civil Code Section 1951.4, (Landlord may continue the
lease in effect after Tenant's breach and abandonment and recover rent as it
becomes due, if Tenant has a right to sublet and assign, subject only to
reasonable limitations) as amended from time to time, shall apply and Landlord
may from time to time, without terminating this Lease, either recover all
rental as it becomes due or relet the Premises or any part thereof for such
term or terms and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable with the right
to make alterations and repairs to the Premises. In the event that Landlord
shall elect to so relet, then rentals received by Landlord from such reletting
shall be applied: first, to the payment of any indebtedness other than Base
Monthly Rent due hereunder from Tenant to Landlord; second, to the payment of
any cost of such reletting; third, to the payment of the cost of any
alterations and repairs to the Premises; fourth, to the payment of Base Monthly
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future Base Monthly Rent as the same may
become due and payable hereunder. Landlord shall have no obligation to relet
the Premises following a default if Landlord has other available space within
the Building or Project. Should that portion of such rentals received from such
reletting during any month, which is applied by the payment of rent hereunder,
be less than the rent payable during that month by Tenant hereunder, then
Tenant shall pay such deficiency to Landlord immediately upon demand therefor
by landlord. Such deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord, as soon as ascertained, any costs and expenses incurred
by Landlord in such reletting or in making such alterations and repairs not
covered by the rentals received from such reletting.
D. No Termination: No re-entry or taking possession of the Premises
by Landlord pursuant to 22.B or 22.C of this Article 22 shall be construed as
an election to terminate this Lease unless a written notice of such intention
be given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Landlord because of any default by Tenant, Landlord may at any time after such
reletting elect to terminate this Lease for any such default.
23. SURRENDER OF LEASE: The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not automatically effect a
merger of the Lease with Landlord's ownership of the Premises. Instead, at the
option of Landlord, Tenant's surrender may terminate all or any existing
sublease or subtenancies, or may operate as an assignment to Landlord of any or
all such subleases or subtenancies, thereby creating a direct Landlord-Tenant
relationship between Landlord and any subtenants.
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24. HABITUAL DEFAULT: Notwithstanding anything to the contrary contained
in paragraph 22, the parties hereto agree that if the Tenant shall have
materially defaulted, after notice and an opportunity to cure as provided
above, in the performance of any (but not necessarily the same) term or
condition of this Lease for three or more times during any twelve month period
during the Lease Term hereof, then such conduct shall, at the election of the
Landlord, represent a separate event of default, which cannot be cured by the
Tenant. Tenant acknowledges that the purpose of this provision is to prevent
repetitive defaults by the Tenant under the Lease, which work a hardship
upon the Landlord, and deprive the Landlord of the timely performance by the
Tenant hereunder.
25. LANDLORD'S DEFAULT: In the event of Landlord's failure to perform
any of its covenants or agreements under this Lease, Tenant shall give Landlord
written notice of such failure and shall give Landlord opportunity to cure (not
to exceed thirty (30) days) or to commence to cure such failure prior to any
claim for breach or for damages resulting from such failure. In addition, upon
any such failure by Landlord, Tenant shall give notice by registered or
certified mail to any person or entity with a security interest in the Premises
("Mortgagee") that has provided Tenant with notice of its interest in the
Premises, and shall provide such Mortgagee as reasonable opportunity to cure
such failure (not to exceed sixty (60) days), including such time to obtain
possession of the Premises by power of sale or judicial foreclosure, if such
should prove necessary to effectuate a cure. Tenant agrees that each of the
Mortgagees to whom this Lease has been assigned is an expressed third party
beneficiary thereof. Tenant shall not make any prepayment of rent more than one
(1) month in advance without the prior written consent of such Mortgagee.
Tenant waives any right under California Civil Code Section 1950.7 or any other
present or future law to the collection of any payment or deposit from such
Mortgagee or any purchaser at a foreclosure sale of such Mortgagee's interest
unless such Mortgagee or such purchaser shall have actually received and not
refunded the applicable payment or deposit.
26. NOTICES: All notices, demands, requests, or consents required to be
given under this Lease shall be sent in writing by U.S. certified mail, return
receipt requested, or by personal delivery addressed to the party to be
notified at the address for such party specified in paragraph 1 of this Lease,
or to such other place as the party to be notified may from time to time
designate by at least fifteen (15) days prior notice to the notifying party.
Notices to Tenant shall be sent as follows:
Notice To: Copy To:
Applied Materials, Inc. Applied Materials, Inc.
3050 Bowers Avenue, M/S 1903 3050 Bowers Avenue, M/S 2634
Santa Clara, California 95054 Santa Clara, California 95054
Attn: Director, Corporate Real Estate Attn: General Counsel
27. ENTRY BY LANDLORD: Tenant shall permit Landlord and his agents to enter
into and upon said Premises at all reasonable times subject to any security
regulations of Tenant for the purposes of (i) inspecting the same, (ii)
maintaining the Premises, (iii) making repairs, alternations or additions to the
Premises, or (iv) performing any obligations of the Landlord under the Lease
including remediation of hazardous materials if determined to be the
responsibility of Landlord without any abatement or reduction of rent or
without any liability to Tenant for any loss of occupation or quiet enjoyment
of the Premises thereby occasioned, provided that such entry shall not
unreasonably interfere with Tenant's use of the Premises. Tenant shall permit
Landlord and his agents, at any time within one hundred eighty (180) days prior
to the Expiration Date (or at any time during the Lease if Tenant is in default
hereunder), to place upon the Premises "For Lease" signs and exhibit the
Premises to real estate brokers and prospective tenants at reasonable hours.
28. Destruction Of Premises:
A. Destruction By An Insured Casualty: In the event of a partial
destruction of the Premises by a casualty for which Landlord has received
insurance proceeds sufficient to repair the damage or destruction during the
Lease Term from any cause, Landlord shall forthwith repair the same to the
extent of such proceeds, provided such repairs can be made within one
hundred eighty (180) days from the date of such partial destruction, and such
partial destruction shall in no way annul or void this Lease, except that
Tenant shall be entitled to a proportionate reduction of Base Monthly Rent until
such repairs are completed, such proportionate reduction to be based upon the
extent to which the making of such repairs shall interfere with the business
carried on by Tenant in the Premises. For purposes of this paragraph "partial
destruction" shall mean destruction of no greater than one-third (1/3) of the
replacement costs of the Premises, including, the replacement cost of the
Tenant Improvements paid for by Landlord. In the event the Premises (i) are
more than partially destroyed, or (ii) the repairs cannot be made in one
hundred eighty (180) days, Landlord or Tenant may elect to terminate this Lease
within fifteen (15) days of determination by Landlord of the foregoing. Landlord
shall not be required to restore Alterations or replace Tenant's fixtures or
personal property. In respect to any partial destruction which Landlord is
obligated to repair or may elect to repair under the terms of this paragraph,
the provisions of Section 1932, Subdivision 2, and of
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Section 1933, Subdivision 4, of the Civil Code of the State of California and
any other similarly enacted statute are waived by Tenant and the provisions of
this paragraph 28 shall govern in the case of such destruction. If such
destruction occurs during the last twelve (12) months of the Lease Term,
Landlord shall not be obligated to restore the Premises unless Tenant exercised
any then existing right to extend the term of the Lease within thirty (30) days
after the destructive event.
B. Destruction By An Uninsured Casualty: In the event of a total or
partial destruction of the Premises by a casualty for which Landlord has not
received insurance proceeds sufficient to repair the damage or destruction
during the Lease Term, the Lease shall automatically terminate, unless (i)
Landlord elects to rebuild, and (ii) the damage can be repaired within one
hundred eighty (180) days.
29. ASSIGNMENT OR SUBLEASE:
A. Consent By Landlord: In the event Tenant desires to assign this
Lease or any interest therein including, without limitation, a pledge, mortgage
or other hypothecation, or sublet the Premises or any part thereof, Tenant shall
deliver to Landlord executed counterparts of any such agreement and of all
ancillary agreements with the proposed assignee or subtenant, financial
statements, and any additional information as reasonably required by Landlord to
determine whether it will consent to the proposed assignment or sublease. The
notice shall give the name and current address of the proposed assignee/
subtenant, proposed use of the Premises, rental rate and current financial
statement; and upon request to Tenant, Landlord shall be given additional
information as reasonably required by Landlord to determine whether it will
consent to the proposed assignment or sublease. Landlord shall then have a
period of thirty (30) days following receipt of the foregoing agreement,
statements and additional information within which to notify Tenant in writing
that Landlord elects (i) in the case of an assignment, to terminate this Lease
as of the date so specified by Tenant in which event Tenant will be relieved of
all further obligations hereunder as to such space, (ii) to permit Tenant to
assign or sublet such space to the named assignee/subtenant on the terms and
conditions set forth in the notice, or (iii) to refuse consent. If Landlord
should fail to notify Tenant in writing of such election within said thirty (30)
day period, Landlord shall be deemed to have elected option (ii) above. If
Landlord exercises its option to terminate this Lease in the event Tenant
desires to assign, then this Lease shall end and expire, with respect to the
Premises, on the date upon which the proposed assignment was to commence.
Landlord's consent (which must be in writing) to the proposed assignment or
sublease shall not be unreasonably withheld, provided and upon condition that:
(i) the proposed assignee or subtenant is engaged in a business that is limited
to the use expressly permitted under this Lease: (ii) the proposed assignee is a
company with sufficient financial worth and management ability to undertake the
financial obligation of this Lease, and Landlord has been furnished with
reasonable proof thereof; (iii) the proposed assignment or sublease shall be in
form reasonably satisfactory to Landlord, (iv) Tenant shall reimburse Landlord
on demand for any costs that may be incurred by Landlord in connection with said
assignment or sublease, including the costs of making investigations as to the
acceptability of the proposed assignee or subtenant and legal costs incurred in
connection with the granting of any requested consent; and (v) Tenant shall not
have advertised or publicized in any way the availability of the Premises
without prior notice to, and the approval by Landlord. In the event all or any
one of the foregoing conditions are not satisfied, Landlord may, in its sole
discretion, withhold its consent to the proposed assignment or sublease.
Notwithstanding the foregoing, Landlord's consent shall not be required for any
proposed sublease or assignment to a parent, subsidiary, or other affiliate of
the Tenant or to any entity into which Tenant merges or which acquires all or
substantially all of the assets of Tenant ("Affiliate").
B. Assignment Or Subletting Consideration: Any rent or other
economic consideration realized by Tenant under any such sublease and
assignment, except to an Affiliate to which Tenant can assign or sublease
without consent, in excess of the rent payable hereunder (including an
allocation of the purchase price attributable to Tenant's leasehold interest in
the event of a sale of the Tenant's business), after the net unamortized cost of
the Tenant Improvements for which Tenant has itself paid, and reasonable
subletting and assignment costs, shall be divided and paid fifty percent (50%)
to Landlord and fifty percent (50%) to Tenant. Tenant's obligation to pay over
Landlord's portion of the consideration shall constitute an obligation for
additional rent hereunder. The above provisions relating to Landlord's right to
terminate the Lease and relating the allocation of bonus rent are independently
negotiated terms of the Lease, constitute a material inducement for the Landlord
to enter into the Lease, and are agreed as between the parties to be
commercially reasonable. No assignment or subletting by Tenant shall relieve
Tenant of any obligation under this Lease. Any assignment or subletting which
conflicts with the provisions hereof shall be void.
C. No Release. Any assignment or sublease shall be made only if and
shall not be effective until the assignee or subtenant shall execute,
acknowledge and deliver to Landlord an agreement, in form and substance
satisfactory to Landlord, whereby the assignee or subtenant shall assume all of
the obligations of this Lease on the part of Tenant to be performed or observed
and
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shall be subject to all of the covenants, agreements, terms, provisions and
conditions contained in this Lease. Notwithstanding any such sublease or
assignment and the acceptance of rent by Landlord from any subtenant or
assignee, Tenant and any guarantor shall and will remain fully liable for the
payment of the rent and additional rent due, and to become due hereunder, for
the performance of all of the covenants, agreements, terms, provisions and
conditions contained in this Lease on the part of Tenant to be performed and for
all acts and omissions of any licensee, subtenant, assignee or any other person
claiming under or through any subtenant or assignee that shall be in violation
of any of the terms and conditions of this Lease, and any such violation shall
be deemed to be a violation by Tenant. Tenant shall further indemnify, defend
and hold Landlord harmless from and against any and all losses, liabilities,
damages, costs and expenses (including reasonable attorney fees) resulting from
any claims that may be made against Landlord by the proposed assignee or
subtenant or by any real estate brokers or other persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease.
D. Effect Of Default: In the event of Tenant's default, Tenant
hereby assigns all rents due from any assignment or subletting to Landlord as
security for performance of its obligations under this Lease and Landlord may
collect such rents, except that Tenant may collect such rents unless a default
occurs as described in paragraph 22 and 24 above. The termination of this Lease
due to Tenant's default shall not automatically terminate any assignment or
sublease then in existence; at the election of Landlord, such assignment or
sublease shall survive the termination of this Lease and, upon such election,
the assignee or subtenant shall attorn to Landlord and Landlord shall undertake
the obligations of the Tenant under the sublease or assignment; provided the
Landlord shall not be liable for prepaid rent, security deposits or other
defaults of the Tenant to the subtenant or assignee, or any acts or omissions of
Tenant, its agents, employees, contractors or invitees.
30. CONDEMNATION: If any part of the Premises shall be taken for any
public or quasi-public use, under any statute or by right of eminent domain or
private purchase in lieu thereof, and only a part thereof remains which is
susceptible of occupation hereunder, this Lease shall as to the part so taken,
terminate as of the day title shall vest in the condemnor or purchaser ("Vesting
Date"), and the Base Monthly Rent payable hereunder shall be adjusted so that
the Tenant shall be required to pay for the remainder of the Lease Term only
such portion of such Base Monthly Rent as the value of the part remaining after
such taking bears to the value of the entire Premises prior to such taking; but
in such event Tenant or Landlord shall have the option to terminate this Lease
as of the Vesting Date. If all of the Premises, or such part thereof be taken so
that there does not remain a portion susceptible for occupation hereunder, this
Lease shall thereupon terminate on the Vesting Date. If a part or all of the
Premises be taken, all compensation awarded upon such taking shall go to the
Landlord and the Tenant shall have no claim thereto but Landlord shall cooperate
with Tenant, without cost to Landlord, to recover compensation for damage to or
taking of any Alterations or Personal Property or for Tenant's moving costs.
Tenant hereby waives the provisions of California Code of Civil Procedures
Section 1265.130 and any other similarly enacted statue are waived by Tenant and
the provisions of this paragraph 30 shall govern in the case of such
destruction.
31. EFFECTS OF CONVEYANCE: The term "Landlord" as used in this Lease,
means only the owner for the time being of the Premises so that, in the event of
any sale or other conveyance of the Premises, or in the event of a maser lease
of the Premises, the Landlord shall be and hereby is entirely freed and relieved
of all covenants and obligations of the "Landlord" hereunder to be performed
thereafter, and it shall be deemed and construed, without further agreement
between the parties and the purchaser at any such sale, or the master tenant of
the Premises, that the purchaser or master tenant of the Premises has assumed
and agreed to carry out any and all covenants and obligations of the Landlord
hereunder to be performed thereafter. Such transferor shall transfer and deliver
Tenant's security deposit to the purchaser at any such sale or the master tenant
of the Premises, and thereupon the such transferor shall be discharged from any
further liability in reference thereto.
32. SUBORDINATION: In the event Landlord notifies Tenant in writing,
this Lease shall be subordinate to any ground Lease, deed of trust, or other
hypothecation for security now or hereafter placed upon the real property of
which the Premises are a part and to any and all advances made on the security
thereof and to renewals, modifications, replacements and extensions thereof.
Tenant agrees to promptly execute and deliver any documents which may be
required to effectuate such subordination. Notwithstanding such subordination
but subject to the terms and provisions of this Lease, Tenant's right to quiet
possession of the Premises shall not be disturbed so long as Tenant is not in
default and so long as Tenant shall pay the rent and observe and perform all of
the provisions of this Lease. At the request of any lender, Tenant agrees to
execute and deliver any reasonable modifications of this Lease which do not
adversely affect Tenant's rights hereunder.
Landlord shall use its best efforts to cause the existing lender to furnish to
Tenant, within sixty (60) days of the date of both parties' execution of this
Lease, with a written agreement providing for (i) recognition by the lender of
all of the terms and conditions of this Lease; and (ii) continuation of this
Lease upon foreclosure of existing lender's security interest in the Premises.
In the event that
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Landlord is unable to provide such agreement, Tenant shall have as its sole
remedy against Landlord the right to terminate the Lease, which election shall
be made, if at all, within fourteen (14) days following the expiration of such
sixty (60) day period.
33. WAIVER: The waiver by Landlord or Tenant of any breach of any term,
covenant or condition, herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant of condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment of rent due shall be deemed to be other than payment on account of
the amount due. No delay or omission in the exercise of any right or remedy by
Landlord or Tenant. No act or conduct of Landlord, including, without
limitation, the acceptance of keys to the Premises, shall constitute acceptance
of the surrender of the Premises by Tenant before the Expiration Date (only
written notice from Landlord to Tenant of acceptance shall constitute such
acceptance of surrender of the Premises). Landlord's consent to or approval of
any act by Tenant which require Landlord's consent or approvals shall not be
deemed to waive or render unnecessary Landlord's consent to or approval of any
subsequent act by Tenant.
34. HOLDING OVER: Any holding over after the termination or Expiration
Date, shall be construed to be a tenancy from month to month, terminable on
thirty (30) days written notice from either party, and Tenant shall pay Base
Monthly Rent to Landlord at a rate equal to one hundred fifty percent (150%) of
the Base Monthly Rent due in the month preceding the termination or Expiration
Date, plus all other amounts payable by Tenant under this Lease. Any holding
over shall otherwise be on the terms and conditions herein specified, except
those provisions relating to the Lease Term and any options to extend or renew,
which provisions shall be of no further force and effect following the
expiration of the applicable exercise period. Tenant shall indemnify, defend,
and hold Landlord harmless from all loss or liability (including, without
limitation, any loss or liability resulted from any claim against Landlord made
by any succeeding tenant) founded on or resulting from Tenant's failure to
timely surrender the Premises to Landlord and losses to Landlord due to lost
opportunities to lease the Premises to succeeding tenants.
35. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained
shall, subject to the provisions of paragraph 29, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall be jointly and severally liable hereunder.
36. ESTOPPEL CERTIFICATES: Tenant shall at any time during the Lease Term,
within thirty (30) days following written notice from Landlord, execute and
deliver to Landlord a statement in writing certifying (i) that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification); (ii) the date to which the rent and other charges are paid
in advance, if any; (iii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder or specifying
such defaults if they are claimed; and (iv) such other information as Landlord
may reasonably request. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises. Tenant's failure to
deliver such statement within such time shall be conclusive upon the Tenant
that: (i) this Lease is in full force and effect, without modification except as
may be represented by Landlord; (ii) there are not uncured defaults in
Landlord's performance. Tenant also agrees to provide the most current three (3)
years of published financial statements within five (5) days of a request by
Landlord for Landlord's use in financing the Premises with commercial lenders.
37. OPTION TO EXTEND THE LEASE TERM:
A. Grant And Exercise Of Option: Landlord hereby grants to Tenant,
upon and subject to the terms and conditions set forth in this paragraph, two
(2) options (the "Options") to extend the Lease Term for an additional term (the
"Option Term"), each Option Term shall be for a period of thirty-six (36)
months. Each such Option shall be exercised, if at all, by written notice to
Landlord no earlier than the date that is eighteen (18) months prior to the
Expiration Date but no later than the date that is nine (9) months prior to the
Expiration Date. If Tenant exercises the Option, each of the terms, covenants
and conditions of this Lease except this paragraph shall apply during the Option
Term as though the expiration date of the Option Term was the date originally
set forth herein as the Expiration Date, provided that the Base Monthly Rent to
be paid by Tenant during the Option Term shall be the greater of (i) the Base
Monthly Rent applicable to the period immediately prior to the commencement of
the Option Date, or (ii) 95% of the Fair Market Rental, as hereinafter defined,
for the Premises for the Option Date. Anything contained herein to the contrary
notwithstanding, if Tenant is in monetary or material non-monetary default under
any of the terms, covenants or conditions of this Lease (having had notice and
opportunity to cure) either at the time Tenant
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exercises the Option or at any time thereafter prior to the commencement date of
the Option Term, Landlord shall have, in addition to all of Landlord's other
rights and remedies provided in this Lease, the right to terminate the Option
upon notice to Tenant, in which event the expiration date of this Lease shall be
and remain the Expiration Date. As used herein, the term "Fair Market Rental"
for the Premises shall mean the rental and all other monetary payments including
any escalations and adjustments thereto (including without limitation Consumer
Price Indexing) then being obtained for new leases of space comparable in age
and quality to the Premises in the locality of the Building that Landlord could
obtain during the Option Term from a third party desiring to lease the Premises
for the Option Term based upon the current use and other potential uses of the
Premises. Fair Market Rental shall further take into account that (i) that
Tenant is in occupancy of the Premises and making functional use of the space in
its then existing condition, and (ii) that no brokerage commission is payable.
B. DETERMINATION OF FAIR MARKET RENTALS: If Tenant exercises the Option,
Landlord shall send to Tenant a notice setting forth the Fair Market Rental for
the Premises for the Option Term, on or before the date that is eight (8) months
prior to the Expiration Date. If Tenant disputes Landlord's determination of the
Fair Market Rental for the Option Term, Tenant shall, within thirty (30) days
after the date of Landlord's notice setting forth the Fair Market Rental for the
Option Term, send to Landlord a notice stating that Tenant either (i) elects to
terminate its exercise of the Option, in which event the Option shall lapse and
this Lease shall terminate on the Expiration Date, or (ii) disagrees with
Landlord's determination of Fair Market Rental for the Option Term and elects to
resolve the disagreement as provided in paragraph 37.C below. If Tenant does not
send to Landlord a notice as provided in the previous sentence, Landlord's
determination of the Fair Market Rental shall be the basis for determining the
Base Monthly Rent to be paid by Tenant hereunder during the Option Term. If
Tenant elects to resolve the disagreement as provided in paragraph 37.C below
and such procedures shall not have been concluded prior to the commencement date
of the Option Term, Tenant shall pay as Base Monthly Rent to Landlord the Fair
Market Rental as determined by Landlord in the manner provided above. If the
amount of Fair Market Rental as finally determined pursuant to paragraph 37.C
below is greater than Landlord's determination, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the Fair Market Rental as so
determined in paragraph 37.C below within thirty (30) days after the
determination. If the Fair Market Rental as finally determined in paragraph 37.C
below is less than Landlord's determination, the difference between the amount
paid by Tenant and the Fair Market Rental as so determined in paragraph 37.C
below shall be credited against the next installments of rent due from Tenant to
Landlord hereunder.
C. RESOLUTION OF A DISAGREEMENT OVER THE FAIR MARKET RENTAL: Any
disagreement regarding the Fair Market Rental shall be resolved as follows:
1. Within thirty (30) days after Tenant's response to Landlord's
notice to Tenant of the Fair Market Rental, Landlord and Tenant shall meet no
less than two (2) times, at a mutually agreeable time and place, to attempt to
resolve any such disagreement.
2. If within the thirty (30) day period referred to in (i) above,
Landlord and Tenant cannot reach agreement as to the Fair Market Rental, they
shall each select one appraiser to determine the Fair Market Rental. Each such
appraiser shall arrive at a determination of the Fair Market Rental and submit
their conclusions to Landlord and Tenant within thirty (30) days after the
expiration of the thirty (30) day consultation period described in (i) above.
3. If only one appraisal is submitted within the requisite time
period, it shall be deemed to be the Fair Market Rental. If both appraisals are
submitted within such time period, and if the two appraisals so submitted differ
by less than ten percent (10%) of the higher of the two, the average of the two
shall be the Fair Market Rental. If the two appraisals differ by more than ten
percent (10%) of the higher of the two, then the two appraisers shall
immediately select a third appraiser who shall within thirty (30) days after his
or her selection make a determination of the Fair Market Rental and submit such
determination to Landlord and Tenant. This third appraisal will then be averaged
with the closer of the two previous appraisals and the result shall be the Fair
Market Rental.
4. All appraisers specified pursuant to this paragraph shall be
members of the American Institute of Real Estate Appraisers with not less than
ten (10) years experience appraising office and industrial properties in the
Santa Clara Valley. Each party shall pay the cost of the appraiser selected by
such party and one-half of the cost of the third appraiser.
38. RIGHT OF FIRST OFFERING TO LEASE: Beginning on the first month
following the Commencement Date and terminating on the Lease Expiration Date,
Landlord hereby grants Tenant a right of first offering to lease the adjacent
building of approximately 63,000 square feet located at 2500 Walsh Avenue
("Expansion Building"). Prior to Landlord offering to lease the Expansion
Building to a third party, Landlord shall give Tenant written notice of such
desire and the terms and
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other information under which Landlord intends to lease the Expansion Building.
Provided at the time of exercise, Tenant (i) is not in default and (ii) fully
occupies the Premises, Tenant shall have the option, which must be exercised, if
at all, by written notice to Landlord within twenty (20) days after Tenant's
receipt of Landlord's notice, to lease the Expansion Building at the rent and
terms of lease specified in the notice. In the event Tenant timely exercises
such option to lease the Expansion Building, Landlord shall lease the Expansion
Building to Tenant, and Tenant shall lease the Expansion Building from Landlord
in accordance with the rent and terms specified in Landlord's notice. Landlord
and Tenant shall, in good faith, attempt to reach agreement on the terms of a
mutually acceptable lease agreement consistent with the terms set forth in
Landlord's notice within thirty (30) days of Landlord's notice. In the event (i)
Landlord and Tenant are unable to reach agreement on a mutually acceptable lease
within such thirty (30) day period or (ii) Tenant fails to exercise Tenant's
option within said ten (10) day period, Landlord shall have one hundred eighty
(180) days thereafter to lease the Expansion Building at no less than ninety
percent (90%) of the rental rate and upon the same or substantially the same
other terms of lease as specified in the notice to Tenant. In the event Landlord
fails to lease the Expansion Building within said one hundred eighty (180) day
period or in the event Landlord proposes to lease the Expansion Building at less
then ninety percent (90%) of the rental rate or on other material terms which
are more favorable to the prospective tenant than that proposed to Tenant,
Landlord shall be required to resubmit such offer to Tenant in accordance with
this Right of First Offering.
Notwithstanding the foregoing, this Right of First Offering shall automatically
terminate, (i) upon the expiration or sooner termination of the Lease, or (ii)
in the event that Landlord transfers its interest in the Premises or in the
Expansion Building.
39. RIGHT OF FIRST OFFERING TO PURCHASE: Beginning on the first month
following the Commencement Date and terminating on the Lease Expiration Date,
Landlord hereby grants Tenant a right of first offering to purchase the
Building. Prior to Landlord offering to sell the Building to a third party,
Landlord shall give Tenant written notice of such desire and the terms and other
information under which Landlord intends to sell the Building. Provided at the
time of exercise, Tenant (i) is not in default and (ii) fully occupies the
Premises, Tenant shall have the option, which must be exercised, if at all, by
written notice to Landlord within thirty (30) days after Tenant's receipt of
Landlord's notice, to purchase the Building at the sales price and terms of sale
specified in the notice. In the event Tenant timely exercises such option to
purchase the Building, Landlord shall sell the Building to Tenant, and Tenant
shall purchase the Building from Landlord in accordance with the price and terms
specified in Landlord's notice. Landlord and Tenant shall, in good faith,
attempt to reach agreement on the terms of a mutually acceptable purchase
agreement consistent with the terms set forth in Landlord's notice within thirty
(30) days of Landlord's notice. In the event (i) Landlord and Tenant are unable
to reach agreement on a mutually acceptable purchase agreement within such
thirty (30) day period or (ii) Tenant fails to exercise Tenant's option within
said ten (10) day period, Landlord shall have one hundred eighty (180) days
thereafter to sell the Building at no less than ninety percent (90%) of the
sales price and upon the same or substantially the same other terms of sale as
specified in the notice to Tenant. In the event Landlord fails to sell the
Building within said one hundred eighty (180) day period or in the event
Landlord proposes to sell the Building at less than ninety percent(90%) of the
sales price or on other material terms which are more favorable to the
prospective tenant than that proposed to Tenant, Landlord shall be required to
resubmit such offer to Tenant in accordance with this Right of First Offering.
This Right of First Offering shall automatically terminate, (i) upon the
expiration or sooner termination of the Lease, or (ii) in the event of a
foreclosure or other involuntary transfer of Landlord's interest in the
Premises. Notwithstanding the foregoing, this Right of First Offering shall
not apply to transfers of all or portion of the Building to (i) John A. Sobrato
and/or John M. Sobrato (individually and collectively "Sobrato"), and (ii) any
immediate family member of Sobrato, and (iii) any trust established, in whole
or in part, for the benefit of Sobrato and/or any immediate family member of
Sobrato, (iv) any partnership in which Sobrato or any immediate family member,
either directly or indirectly (e.g., through a partnership or corporate entity
or a trust) retains a general partner interest, and/or (v) any corporation
under the control, either directly or indirectly, by Sobrato or any immediate
family member of Sobrato.
40. OPTIONS: All Options provided Tenant in this Lease are personal and
granted to Tenant and are not exercisable by any third party should Tenant
assign or sublet all or a portion of its rights under this Lease, except to an
Affiliate for which Landlord's consent is not required, unless Landlord
consents to permit exercise of any option by any assignee or subtenant, in
Landlord's sole discretion. In the event that Tenant hereunder has any multiple
options to extend this Lease, a later option to extend the Lease cannot be
exercised unless the prior option has been so exercised.
41. QUIET ENJOYMENT: Upon Tenant's faithful and timely performance of all
the terms and covenants of the Lease and except as otherwise provided in this
Lease, Tenant shall quietly have and hold the Premises for the Lease Term and
any extensions thereof.
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42. BROKERS: Tenant represents it has not utilized or contacted a real
estate broker or finder with respect to this Lease other than Wayne Mascia
Associates and Tenant agrees to indemnify and hold Landlord harmless against any
claim, cost, liability or cause of action asserted by any other broker or finder
claiming through Tenant.
43. LANDLORD'S LIABILITY: If Tenant should recover a money judgment
against Landlord arising in connection with this Lease, the judgment for any
item other than Landlord's Indemnity Obligation shall be satisfied only out of
Landlord's interest in the Premises including the improvements and real property
and neither Landlord or any of its partners, officers, directors, agents,
trustees, shareholders or employees shall be liable personally for any
deficiency. And furthermore, Tenant expressly waives any and all rights to
proceed against the individual partners or the officers, directors or
shareholders of any corporate partner, except to the extent of their interest in
said limited partnership. Any judgment arising from Landlord's Indemnity
Obligation shall be limited to the greater or (i) Landlord's interest in the
Premises as provided above, or (ii) One Million and No/100 Dollars
($1,000,000.00). Landlord shall carry liability insurance including liability in
the amount of Five Million and No/100 Dollars ($5,000,000.00).
44. AUTHORITY OF PARTIES: Tenant represents and warrants that it is duly
formed and in good standing and that the officers executing this Lease are duly
authorized to execute and deliver this Lease on behalf of said corporation, in
accordance with a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms. At
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory authorizing the execution of the Lease.
45. TRANSPORTATION DEMAND MANAGEMENT PROGRAMS: Should a government agency
or municipality require Landlord to institute TDM (Transportation Demand
Management) facilities and/or program, Tenant hereby agrees that the cost of TDM
imposed facilities required on the Premises, including but not limited to
employee showers, lockers, cafeteria, or lunchroom facilities, shall be included
as a capital improvement for which amortization can be charged to Tenant and any
ongoing costs or expenses associated with a TDM program, such as an on-site TDM
coordinator, which are required for the Premises and not provided by Tenant
shall be provided by Landlord with such costs being included as additional rent
and reimbursed to Landlord by Tenant.
46. DISPUTE RESOLUTION: Except for the failure by Tenant to timely pay the
Base Monthly Rent, any controversy, dispute, or claim of whatever nature arising
out of, in connection with, or in relation to the interpretation, performance or
breach of this agreement, including any claim based on contract, tort, or
statute, shall be resolved at the request of any party to this agreement through
a two-step dispute resolution process administered by JAMS or another judicial
and mediation service mutually acceptable to the parties involving first
mediation, followed, if necessary, by final and binding arbitration administered
by and in accordance with the then existing rules and practice of the judicial
and mediation service selected, and judgment upon any award rendered by the
arbitrator(s) may be entered by any State or Federal Court having jurisdiction
thereof.
47. MISCELLANEOUS PROVISIONS:
A. RENT: All monetary sums due from Tenant to Landlord under this
Lease, including, without limitation, those referred to as "additional rent",
shall be deemed to be rent.
B. MANAGEMENT FEE: Tenant shall pay to Landlord in addition to the
Base Monthly Rent a fee of two percent (2%) of the Base Monthly Rent to
reimburse Landlord for the property management costs related to the Premises.
C. PERFORMANCE BY LANDLORD: If Tenant fails to perform any
obligation required under this Lease or by law or governmental regulation,
Landlord in its sole discretion may without notice and without releasing Tenant
from its obligations hereunder or waiving any rights or remedies, perform such
obligation, in which event Tenant shall pay Landlord as additional rent all sums
paid by Landlord in connection with such substitute performance including
interest as provided in paragraph 46.D below within ten (10) days following
Landlord's written notice for such payment.
D. INTEREST: All rent due hereunder, if not paid when due, shall
bear interest at the maximum rate permitted under California law accruing from
the due date until the date paid to Landlord.
E. RIGHTS AND REMEDIES: All rights and remedies hereunder are
cumulative and not alternative to the extent permitted by law and are in
addition to all other rights and remedies in law and in equity.
Page 15
<PAGE> 28
F. SURVIVAL OF INDEMNITIES: All indemnification, defense, and hold
harmless obligations of Landlord and Tenant under this Lease shall survive the
expiration or sooner termination of the Lease.
G. SEVERABILITY: If any term or provision of this Lease is held
unenforceable or invalid by a court of competent jurisdiction, the remainder of
the Lease shall not be invalidated thereby but shall be enforceable in
accordance with its terms, omitting the invalid or unenforceable term.
H. CHOICE OF LAW: This Lease shall be governed by and construed in
accordance with California law. Venue shall be Santa Clara County.
I. TIME: Time is of the essence hereunder.
J. ENTIRE AGREEMENT: This instrument contains all of the agreements
and conditions made between the parties hereto and may not be modified orally or
in any other manner other than by an agreement in writing signed by all of the
parties hereto or their respective successors in interest.
K. REPRESENTATIONS: Tenant acknowledges that neither Landlord nor
any of its employees or agents have made any agreements, representations,
warranties or promises with respect to the demised Premises or with respect to
present or future rents, expenses, operations, tenancies or any other matter.
Except as herein expressly set forth herein, Tenant relied on no statement of
Landlord or its employees or agents for that purpose.
L. HEADINGS: The headings or titles to the paragraphs of this Lease
are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof.
M. EXHIBITS: All exhibits referred to are attached to this Lease and
incorporated by reference.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and
year first above written.
LANDLORD: TENANT:
Sobrato Development Companies #871, Applied Materials,
a California Limited Partnership A Delaware Corporation
By: /s/ JOHN MICHAEL SOBRATO By: /s/ DOUGLASS SPILMAN
--------------------------- ------------------------------
Its: General Partner DOUGLASS SPILMAN
- -------------------------------- Its: Director
------------------------------
Corp. Real Estate & Facilities
------------------------------
Page 16
<PAGE> 29
EXHIBIT "A" - PREMISES
SITE MAP
Page 17
<PAGE> 30
EXHIBIT "B" - TENANT IMPROVEMENTS
(preliminary - final plans to be attached)
FLOOR PLAN
Page 18
<PAGE> 31
FIRST FLOOR
(Preliminary - final plans to be attached)
FLOOR PLAN
Page 19
<PAGE> 32
PARKING LICENSE AGREEMENT
THIS PARKING LICENSE AGREEMENT ("Agreement") is entered into as of October
1, 1997 (the "Effective Date"), by and between Probe Technology Corporation, a
California corporation ("Probe") and Applied Materials, Inc., a Delaware
corporation ("AMAT")
RECITALS
A. Probe is the tenant of the property located at 2424 Walsh Avenue, Santa
Clara, California. AMAT is the tenant of the property located at 2450 Walsh
Avenue, Santa Clara, California.
B. Probe desires to utilize certain parking facilities at 2450 Walsh Avenue
in connection with its occupancy of 2424 Walsh Avenue. AMAT is willing to allow
probe to access 2450 Walsh Avenue subject to the terms set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
obligations set forth herein and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Probe and AMAT agree as follows:
1. GRANT OF LICENCE. AMAT hereby grants to Probe, its employees, agents,
contractors and invitees the right to utilize twelve (12) parking spaces at
2450 Walsh Avenue, including rights of ingress and egress thereto. Probe's
employees, agents, contractors and invitees shall utilize only those spaces
shown on the diagram attached hereto as Exhibit A.
2. TERM. The term of this Agreement shall commence on the Effective Date and
shall continue on a month-to-month basis. The Agreement may be terminated by
either party upon thirty (30) days written notice to the other party.
3. RENT. Probe shall pay to AMAT monthly rent in the amount of Three Hundred
Sixty Dollars ($360.00), which payment shall be due on the first day of each
month of the term. Rent for any partial month shall be prorated based on the
number of days in such month.
4. DAMAGE TO THE PROBE PROPERTY. Probe shall promptly repair any damage
caused by its entry onto 2450 Walsh Avenue pursuant to this Agreement. If Probe
fails to repair any damage within thirty (30) days of receipt of notice to do
so from AMAT, AMAT may perform such repair work and submit an invoice to Probe.
Any such invoice shall be paid within thirty (30) days and shall bear interest
at the highest rate permitted by law if not paid within such thirty (30) day
period.
<PAGE> 33
5. Indemnification. Probe shall indemnify AMAT and its landlord, Sobrato
Development Companies #871 ("Sobrato") and hold AMAT and Sobrato harmless from
any and all loss, cost, damage, injury or expense (including reasonable
attorneys' fees and costs) arising out of or related to claims of injury to or
death of persons or damage to property occurring from the use or occupancy of
2450 Walsh Avenue by Probe, its employees, agents, contractors and invitees.
Notwithstanding the foregoing Probe shall have no obligation to indemnify AMAT
or Sobrato from any claim arising from the negligence or willful misconduct of
AMAT or Sobrato or their employees, agents, consultants and invitees. This
indemnity shall survive the termination of this Agreement for a period of three
years.
6. Insurance. During the term of this Agreement, Probe shall obtain worker's
compensation and public liability and property damage insurance for occurrences
at 2450 Walsh Avenue with combined limits for bodily injury and property damage
of not less than $2,000,000.00 per occurrence and a general aggregate limit of
not less than $5,000,000.00. Probe shall name AMAT, Sobrato and Sobrato's lender
as additional insureds, and shall deliver a copy of the policies and renewal
certificates to AMAT. All such policies shall provide for thirty (30) days prior
written notice to AMAT and Sobrato of any cancellation, termination or reduction
in coverage.
7. Sobrato's Consent. Probe acknowledges that this Agreement is subject to
the consent of Sobrato. Accordingly, this Agreement shall not be effective
unless and until Sobrato has consented to this Agreement in writing. AMAT shall
use diligent efforts to obtain such consent as soon as reasonably possible
following execution of this Agreement by AMAT and Probe. AMAT shall have no
liability whatsoever to Probe, however, if AMAT is unable to obtain such consent
from Sobrato.
8. Notices. All notices to be given to either party pertaining to this
Agreement shall be in writing and shall be deemed to have been fully given two
(2) days after being deposited in the United States mail, certified or
registered, postage prepaid, and addressed to the party to be notified at the
following addresses, or to such other place as the party to be notified may from
time to time designate in writing:
If to Probe: Probe Technology Corporation
2424 Walsh Avenue
Santa Clara, A 95051-1303
Attn: Chief Financial Officer
If to AMAT: Applied Materials, Inc.
3050 Bowers Avenue, M/S 2753
Santa Clara, CA 95054
Attn: Corporate Real Estate Manager
with a copy to: Applied Materials, Inc.
2881 Scott Boulevard, M/S 2062
Santa Clara, CA 95050
Attn: General Counsel
<PAGE> 34
9. Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes any prior or
contemporaneous negotiations, agreements or understandings.
10. Modification. This Agreement may not be modified or amended except by a
written instrument signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
<TABLE>
<CAPTION>
Probe AMAT
----- ----
<S> <C>
Probe Technology Corporation, a Applied Materials, Inc. a
California corporation Delaware corporation
By: /s/ WILLIAM P. DOWNEY By: /s/ WEI CHIU
-------------------------------- -----------------------------------
Name: William P. Downey Name: Wei Chiu
------------------------------ ---------------------------------
Its: C.F.O. Its: Sr. Director
------------------------------ ---------------------------------
Global Real Estate& Construction
---------------------------------
</TABLE>
<PAGE> 35
SITE PLAN
EXHIBIT A
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 29,121
<SECURITIES> 6,139
<RECEIVABLES> 12,057
<ALLOWANCES> 0
<INVENTORY> 3,837
<CURRENT-ASSETS> 54,806
<PP&E> 6,431
<DEPRECIATION> 0
<TOTAL-ASSETS> 113,254
<CURRENT-LIABILITIES> 13,928
<BONDS> 0
0
0
<COMMON> 42,431
<OTHER-SE> 54,471
<TOTAL-LIABILITY-AND-EQUITY> 96,902
<SALES> 23,253
<TOTAL-REVENUES> 23,253
<CGS> 16,126
<TOTAL-COSTS> 16,126
<OTHER-EXPENSES> 11,386
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 472
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,787)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,787)
<EPS-PRIMARY> (.29)
<EPS-DILUTED> (.29)
</TABLE>
